Ex Parte Gilmore , 88 Tex. Crim. 529 ( 1920 )

The original opinion failed to receive the sanction of Presiding Judge DAVIDSON. He noted his dissent and indicated an intention later to state his reasons therefor.

Full of years and honor possessing the esteem of his countrymen and in love of his associates he died, leaving his purpose unfulfilled.

Upon his desk has been found a pencil memorandum recording his views with reference to the legal questions involved in the case. The memorandum suggests that its review was contemplated. To the end that his thoughts upon the subject may be preserved and recorded with the decision rendered by the court, we herewith attach the memorandum to which reference has been made. This has the concurrence of the entire court.

"Ex parte Gilmore:

"If Rhode Island v. Palmer correctly interprets the Eighteenth Amendment to the Federal Constitution, the late prohibition amendment to the Texas Constitution and the Dean law enacted thereunder are invalid.

As interpreted, the Eighteenth Amendment `binds all legislative bodies, courts, public officers and individuals within those limits, and of its own force invalidates every act, whether by Congress, by a State Legislature or by territorial assembly, which authorizes or sanctions what the section prohibits. The court further holds the Volstead Act of Congress valid wherein it prescribes the amount of alcoholic strength at one-half of one per cent. This language is sufficiently emphatic to convey a definite meaning. It is at least intended to leave no doubt as to what that Court thought and intended to decide. That renders the first section of the Eighteenth Amendment sweepingly omnipotent. All power has been centralized in the Federal government on that subject except `concurrent power' to enact `appropriate legislation' to assist in executing the provisions and purposes of that amendment; such legislation can neither `defeat nor thwart' such purposes. The States cannot deal with the prohibition of intoxicants otherwise, either in their Constitutions or Legislatures. That amendment limits such power to the single matter stipulated in the amendment; it takes all other power from the States. Such `concurrent power does not mean joint power or require that the legislation thereunder by Congress to be effective shall be approved or sanctioned by the several States, or any of them, nor do they mean that the power to enforce is divided between Congress and the several States along the lines which separate or distinguish foreign and intrastate commerce from interstate commerce.' While this power in Congress is not exclusive, it is territorially co-extensive with the jurisdiction of the first section of the Eighteenth Amendment. It embraces the manufacture, sale, exportation and transportation of intrastate transactions (the instant case is an intrastate transaction); it embraces interstate commerce as well, and is not affected and in nowise dependent upon any action or want of action on the part of the States or any one of them. Rhode Island v. Palmer, supra.

The effect of that decision is that the `concurrent power' to pass `appropriate legislation' by the States, must harmonize, and constitutes congressional action the basis of the harmony. Conflicting legislation does not harmonize. There must be a superior or controlling Act to render it possible to carry out the purposes of the Eighteenth Amendment. If the Volstead Act is valid, fixing percentage of alcoholic volume, it is evident the Dean law is not. The variance between the two Acts places them in sharp and decided conflict. The State being deprived of the power to legislate along the lines of intrastate commerce, it can only legislate on lines indicated in interstate commerce transactions. This is placed definitely in Congress.

The question of `concurrent power' is not novel in Texas. The Legislature has conferred power upon cities to punish some acts as offenses which are denounced as State offenses. In such cases the municipality must define and punish as does the State law, otherwise the city ordinance is void. This is but concurrent power with superior authority in the State. Flood v. State, 19 Texas Crim. App., 584; Angerhoffer v. State, 15 Texas Crim. App., 613; Mantel v. State, 55 Tex.Crim. Rep.; McLain v. State, 31 Tex. Crim. 561; Lynn v. State, 33 Tex.Crim. Rep.; Ex parte Fagg,38 Tex. Crim. 587; Ex parte Ogden, 43 Tex.Crim. Rep.; Ex parte Powell, 43 Tex.Crim. Rep.; Brown Cracker Co. v. Dallas, 104 Tex. 290, 137 S.W. Rep., 342; Harris Ann. Texas Cons., p. 209, Note 3, for collated cases.

Under Rhode Island v. Palmer the superior authority is in the Federal government. That case so holds. The State being deprived of the power `along intra-state lines' can act concurrently with Congress along interstate lines. The State cannot act independently of the stipulated `concurrent power.' To hold otherwise would destroy the Eighteenth Amendment, at least render impossible its enforcement. The State must conform to the Federal law. Rhode Island v. Palmer. Power to legislate in regard to prohibition does not now exist in the State under the Eighteenth Amendment primarily as to intrastate matters or transactions. There can be no prohibition of intoxicants by the State as separate or differently from the Eighteenth Amendment and Federal legislation. If there be a conflict the State loses authority and is subordinated to the Federal government. The operation of the Eighteenth Amendment being general as to all territorial limits, no act of the State can make a regulation operative specially in the State; if so, every State can so legislate, with the result that the regulations would be as diverse from the Federal law as there are States in the Union. It would seem the States must therefore conform to the Federal legislation. This is the effect of the Eighteenth Amendment given in the case, supra; that opinion clearly lays down that proposition; it also as clearly decides that the States have fully and completely subordinated themselves to the Federal Constitution and legislation. If that decision does not so decide, it was vainly written.

What I have here said but follows and is in obedience to the decision of the Supreme Court, which is in such matters the controlling authority. The writer, however, desires to say he does not agree that the Eighteenth Amendment is valid, nor was it properly ratified so far as Texas is concerned, and this is doubtless true as to other States.

The Texas Legislature is expressly inhibited from abolishing any provision of the Constitution of Texas. Art 1, Sec. 2; Sec. 29, Art. 1; Art. 17 of the State Constitution. Only the people, at an election held for that purpose, can amend, abolish, alter or reform the State Constitution, as specifically provided in the provisions above cited. Much less has the Legislature power to transfer State sovereignty — the republican form of government. The State even by a vote of the people cannot abolish, alter or reform its Constitution so as to abolish the retained republican form of government. Art. 1, Sec. 2. Not only so, but the Federal Constitution not only so prohibits, but it guarantees this shall not be done. U.S. Constitution, Art. IV, sec. 4.

The Tenth Amendment to the Federal Constitution expressly retains the representative — republican form of government. The Federal government should protect the States, and is required so to do, in this retained sovereignty. To hold otherwise destroys the State's sovereignty, and centralizes the Federal government into one of autocracy. The rule of `an indestructible union of indestructible States, no longer exists. Two agencies of delegated power — the Texas Legislature and Congress — combining, have destroyed state sovereignty and the `indestructible union' at `one fell swoop,' assumed original power to the destruction of their principal, the States. The servant is not greater than his master. Congress and the State Legislature act, and can only act under delegated power. Neither have any original power; it is all derived from the States, conferred through the delegation. `The maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government unimpaired to all the States' is the basic principle upon which the Federal government was founded. The combined acts of State representatives in Congress with those in the State legislature have destroyed the right of local self-government, and have abolished State sovereignty. It was the immortal Edmund Burke who said: `This change from an immediate state of procuration and delegation to a course of acting as from original power is the way in which all popular magistracies have been perverted from their purposes.' I do not believe that either Congress or the Texas legislature has this power. It certainly was not contemplated by the States in forming the union, nor by the people in framing our State Constitution, but, as I understand, in both instances expressly withheld and denied such power. The history of these matters has been fully chronicled and is well known. May it not be that `our own like free States foregone, is but a bright leaf torn from time's dark forest, and in the wild gust thrown to float awhile, by varying eddies borne, and sink at last forever?'

The Texas Constitution provided for prohibition in local option form. Art. 16, Sec. 20. The Volstead Act abolishes this provision under, I may term, the subterfuge of a war measure, and completed its destruction in the ratification of the Eighteenth Amendment. The people were not consulted about this destruction of their reserved sovereignty. The Legislature abolished State sovereignty in direct violation of both Constitutions, State and Federal. This Act of the Texas legislature is void by the express provisions of Art. 1, Sec. 29. It declares `to guard against transgressions of the high powers herein delegated, we declare that everything in this bill of rights is expected out of the general powers of government and shall forever remain inviolate, and all laws contrary thereto or to the following provisions shall be void.' Art. 1, Sec. 2, ordains: `All political power is inherent in the people and all free governments are founded on their authority and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and subject to this limitation only they have at all times the inalienable right to alter, reform or abolish their government in such manner as they think expedient.' Language could not be plainer nor intent clearer to convey sovereign power over the matter specified. Such power was withheld from legislative bodies, State and national, to change, alter, reform or abolish the specified republican form of government. The protection of this power the Federal government was pledged to guarantee in Art. IV, Sec. 4 of the Federal Constitution. Have not these guarantees been set at naught and violated? Did the people of Texas have any voice in the abolition of their sovereignty? Certainly not. It was done by legislative usurpation, by the assumption of power original and to the exclusion of delegation. The Legislature is not the people, and that body can neither make nor unmake Constitutions. They are made by the people. It it but a creature of the people exercising `inherent power.' The provided method for any change in our State Constitution is by amendment, through a referendum to the people. Art. 17, Texas Constitution. Otherwise it remains as ordained originally by the people.

When the Volstead Act suspended the State Constitution, President Wilson sought to preserve the sovereignty of the States by exercise of the veto power, but was over-ridden by a vote of Congress. This act was dependent upon the contingency of a signed treaty with Germany. To avoid the transitory nature of this act the Eighteenth Amendment was placed in the Federal Constitution. That the Texas legislature could neither suspend nor abolish the State Constitution has been definitely settled by the courts. A late and thoroughly considered case is Ex parte Meyer,84 Tex. Crim. 288, 207 S.W. Rep. 100. That was the controlling question in that case. The attorney General of Texas urgently insisted the Legislature had authority to suspend Art. 16, Sec. 20, both as a war measure and under the police power of the State. These contentions were held unsound and without plausibility. The reasoning of Judge MORROW on that question is unswerable.

The main difference between the Texas Constitution and that of Ohio, as stated in Ohio v. Cox, 257 Fed. 334-5, is that in Texas the referendum is a condition precedent, while in Ohio it is a condition subsequent. I shall not discuss that matter, though it may be of importance.

That the State of Texas has been deprived illegally of its inherent power, and its republican form of government destroyed, by the Eighteenth Amendment, ought not to be questioned as the matter now stands. To argue otherwise seems to the writer to be a travesty on words, based on evasive casuistry. The above observations express to some extent the belief and opinion of the writer, and are stated with all due deference to the great courts who have written otherwise.

In the instant case the State urges the Rhode Island case does not announce a correct decision. We are further asked to hold that Texas has the authority to pass laws that are inconsistent with the Eighteenth Amendment and the Volstead Act, on the theory that the Texas legislature can enact any law which aids the abolishment of the manufacture or sale of intoxicants, though inconsistent with the Federal amendment and legislation.

The applicant relies upon the decision in the Rhode Island case. Having expressed my own views, I shall follow the Supreme Court in its decision inasmuch as that Court is supreme in deciding Federal questions, and its decisions binding upon State courts on such questions. The Rhode Island case is decided purely upon prohibition. The war measure feature seems to have been ignored; it was doubtless thought unnecessary in the light of the Eighteenth Amendment. The friends of the Volstead Act and the Eighteenth Amendment there contended for the superiority of the Federal control of prohibition, and were awarded a favorable decision. They ought not now, in good faith, to ask the State courts to hold otherwise. They secured Federal intervention, to the exclusion of the States, and ought not to be heard to disavow heir own act. They secured a transfer of the dominancy of the question from the State, and should abide the result. If that transfer was invalid the Rhode Island decision is wrong, but the Supreme Court upheld it. The subsequent adoption by Texas people of statewide prohibition cannot avail, as the question stands decided. The Volstead Act suspended Art. 16, Sec. 20; and the ratification of the Eighteenth Amendment, that article and section. There was, therefore, nothing to amend. An abolished constitution or a repealed law are not the subjects of amendment. Amendments can only be had to an existing constitutional provision or law. The vote of the people was therefore futile to resurrect and amend the abolished constitution. There was nothing to amend. Not only so, but all power over the subject had been transferred to the Federal government as embraced in the Eighteenth Amendent.

The Dean law was enacted to carry out and render effective the amendment to the State Constitution, not the Federal Constitution. This was not permissible. The power of the State to enact intrastate prohibition does not now exist independent of the Federal Constitution. State legislation on this subject only exists in aid of Federal control. The theory of the Dean law is that it could control intrastate prohibition as the State did intra-commerce. This is exactly what the Supreme Court said could not be done. This control of the question cannot exist in both separately as to interstate and intrastate commerce. All power of control from an intrastate standpoint was abolished by the Eighteenth Amendment, leaving no original power in the State over the subject. The Federal amendment was adopted for the express purpose of removing prohibition from the States to the Federal government, and enlarging the territory of its operation. The States' territory was too restricted. A larger field was sought and obtained. Therefore it was necessary to make governmental control commensurate. The Federal government alone could do this, the State's authority being too restricted. The original power of the States over the question passed with the ratification of the Eighteenth Amendment as completely as did Esau's birthright over the mess of pottage. Doubts, if any there be, have been resolved in favor of the grantee, the Federal government. Rhode Island v. Palmer, supra. Cox v. Ohio, supra. The conflicts between the Federal laws and the Dean Act for the same reasons will be resolved in favor of the Volstead Act. Same cases, supra. That these conflicts exist is manifest from the language of the two acts: illustration: the Dean law defines intoxicants as containing one per cent alcoholic strength; the Volstead act as containing only one-half of one per cent. The Dean act authorizes sale of liquors double in strength to those interdicted by the Volstead act. These provisions are irreconcilable. They are not concurrent. They do not run in harmony. They are diverse and conflictingly adverse. The two laws do not concur when they nullify each other; their effect is destruction, not concurrent upholding. The citizen may plead immunity from prosecution under the Dean law if the liquor does not contain over one per cent alcoholic strength; for the same act under the Volstead law the citizen may be punished if the liquor contains in excess of one-half of one per cent alcohol. Under one law he can be punished for the thing for which the other law holds him guiltless. One law must be superior or they both fall; they cannot both stand. Two conflicting laws cannot occupy the same territory at the same time. Such legislation is not concurrent; the required harmony is destructively out of unison.

The two laws are in direct conflict in regard to punishment. The Dean law prescribes felony punishment, the Volstead Act, is a misdemeanor. The Dean law punishment carries infamy, deprivation of civil rights and disqualification of the right of suffrage; the Volstead Act does none of these things. This is hopeless conflict. It may be that the Dean law enhances punishment because it authorizes intoxicants of higher percentage. I do not care to discuss other conflicts as shown by the two Acts; the two mentioned are fully sufficient to demonstrate the irreconcilable conflicts. Rhode Island v. Palmer is authority for the supremacy of the Federal laws.

I desire to present another question. The Eighteenth Amendment prohibits only the manufacture, sale or transportation of intoxicants for traffic or sale purposes. It does not debar, nor undertake so to do, the citizen's right to have, transport or use intoxicants as it pertains to him individually, and so long as he does have it for such purposes as specified in the amendment he is guiltless of its violation. It only deals with him in relation to others; so long as he does not manufacture it for sale, or does not sell, or does not transport it for illegal purposes he is not subject to prosecution. Coleman v. State, 87 Tex. Crim. 240; 220 S.W. 1079; Street v. Lincoln Safe Deposit Co., Sup Ct. Advance Opinions, No. 2, p. 7. (The Dean act is at variance with the Federal act on this question, and therefore illegal). The Eighteenth Amendment does not deal with, nor seek to deal with personal habits, tastes, customs or even vices of the citizen; it is only his relations to others the Amendment affects or interdicts.

Again, the Eighteenth Amendment only deals with intoxicants when manufactured, sold or transported for beverage purposes. The State amended Constitution prohibits only when the intoxicant is `capable of producing intoxication.' It would be idle to discuss the possibility of one-half of one per cent alcoholic liquors as being capable of producing intoxication.' This is the criterion set forth in the State amended Constitution. It is, in effect, the definition there specified. Any definition of the Legislature contrary to this provision would be necessarily unauthorized. The Legislature cannot suspend or alter the Constitution. Harris Ann. Constitution, p. 218, note 41; p. 215, note 23; page 217, note 34.

The definition of alcoholic liquors at one-half of one per cent volume went into effect upon the approval of the Volstead Act, and was in effect when the Eighteenth Amendment was ratified. This was continued in effect, see title of that Act, as were sections 27, 37 and 38. Titles 1 and 111 also went into effect at the date of approval. The date of approval was when the veto of the President was overridden by Congress. The remaining sections of title 117 of that Act went into effect when the Eighteenth Amendment was ratified. The ratification adopted and rendered effective all sections of the Act. This Act of Congress being thus ratified became as binding as did the Eighteenth Amendment; it became the act of all the States and binding upon them. It placed it beyond the power of the States to annul or qualify the provisions of that act. The ratification was that of the Act of Congress and will remain in vogue until repealed or changed by Congress. This was the method by which the Eighteenth Amendment was to operate until Congress changed it. Having been adopted by the three-fourths of the States it could not be repealed or substituted by one of the States; it placed in Congress alone the power to change those provisions. It took three-fourths of the States to ratify the Amendment, which determined the date of the effectiveness of the Act of Congress, and that effect could not be changed by one State. The intrastate feature had been abrogated; it passed into the Federal government as applicable to all its territorial limits. This being true, the one-half of one per cent volume could not be abolish by any State; its intrastate powers had ceased; it had been merged into congressional and national authority. The authority of the States by ratification of the Eighteenth Amendment was merged. This definition then became the act of all the States and must so remain until changed by Congress, in which the ratification had lodged the superior power. No State can change this.

Under Rhode Island v. Palmer the applicant, it seems to me, was entitled to his discharge from custody."