Ex Parte McCloskey , 82 Tex. Crim. 531 ( 1917 )

In his motion for rehearing the relator again urges, in a forcible brief and argument, substantially the same contentions made by him in the original submission of this cause. As contended by the State in its brief and argument, in reply to the relator's, there is no substantial difference from his original insistence. It would seem needless, then, to further discuss any of them. However, it is thought best to cite and quote from some of the many decisions, especially from the United States Supreme Court, directly in point, establishing the law clearly against relator's contentions.

The statute which he attacks and the complaint and information against him thereunder, were quoted in the original opinion; also the grounds of his attack were stated therein. It is unnecessary to repeat any of these. The authorities, and quotations therefrom, which will now be given, are so clearly applicable it will be unnecessary to enter into any specific application of them in this opinion.

The United States Supreme Court, in Crowley v. Christensen,137 U.S. 86, 34 L.Ed., 623, laid down the correct doctrine applicable herein, as follows:

"It is undoubtedly true that it is the right of every citizen of the United States to pursue any lawful trade or business, under such restrictions as are imposed upon all persons of the same age, sex and condition. But the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemd 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 license 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 Constitution of 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. And as to the enjoyment of property, the rule is general that it must be accompanied with such limitations as will not impair the equal enjoyment by others of their property. Sic utere tuo ut alienum non laedas is a maxim of universal application.

"For the pursuit of any lawful trade or business, the law imposes similar conditions. Regulations respecting them are almost infinite, varying with the nature of the business."

That great court, in Purity Extract T. Co. v. Lynch,226 U.S. 192, 57 L.Ed., 187, again laid down the unquestionable doctrine applicable herein, as follows:

"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 inocuous, 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; 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 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 the 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.'"

In Patsone v. Pennsylvania, 232 U.S. 138, 58 L.Ed., 543, the same doctrine as above announced was again reiterated and emphasized. In that case an Act of the Legislature of Pennsylvania was under consideration which made it an offense for any resident foreign born person to own or be possessed of a shotgun or rifle in that State, and also forfeited such weapon. The object of the Legislature of that State in enacting that law was to protect wild game in that State. The United States Supreme Court sustained the validity of that law. It is unnecessary to quote the opinion.

In 6 Ruling Case Law, 193, based on the decisions of the United States Supreme Court and of many of the States of the United States, the principles applicable herein are clearly laid down. Some of these will be here quoted. Sec. 192 is:

"All property within the jurisdiction of a State, however unqualified may be the title of the owner, is held on the implied condition or obligation that it shall not be injurious to the equal right of others to the use and benefit of their own property. In other words, all property is held subject to the general police power of the State so to regulate and control its use in a proper case as to secure the general safety, the public welfare, and the peace, good order and morals of the community. Accordingly it is a fundamental principle of the constitutional system of the United States that rights of property, like all other social and conventional rights, are subject to such reasonable restraints and regulations established by law as the Legislature, under the governing and controlling power vested in it by the Constitution, may think necessary and expedient. And to these ends the Legislature under its police power may pass laws regulating the acquisition, enjoyment and disposition of property, even though in some respects these may operate as a restraint on individual freedom or the use of property. The subordination of property rights to the just exercise of the police power has been said to be as complete as is the subjection of these rights to the proper exercise of the taxing power, and it is held that this implied condition is quite irrespective of the source or character of the title. This principle is in effect an application of the maxim which underlies the police power, sicutere tuo ut alienum non laedas."

Again in section 211, page 217, it is laid down: "It can not be questioned that the State, under its police power, has the right to regulate any and all kinds of business, to protect the public health, morals and welfare, subject to the restrictions of reasonable classification. If a vocation or the mode of exercising it inflicts injury to the rights of others, or is inconsistent with the public welfare, it may be regulated and restrained by the State, by the exercise of its police power, and this power is not confined to the regulation of these classes of business which are essentially illegal, for it extends likewise to lawful callings. In this connection it has been declared that the right of regulation is an exception to the general rule that every person has a right to pursue any lawful calling. . . . It is not necessary that it always affect injuriously the public at large. On the contrary, it may be regulated if it affects injuriously those engaged in it, or those brought in direct contact with it, even though its pursuit may benefit generally the people of the State at large."

Again in section 214, page 221, it is said: "Since all rights are held subject to the police power of the State, when necessary the Legislature may prohibit absolutely the maintenance of any particular business if the public safety or the public morals require its discontinuance; and the hand of the Legislature can not be stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer. A calling may not be immoral in itself, and yet the tendency of what is generally or ordinarily or often done in pursuing that calling may be towards that which is admittedly immoral or pernicious. 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." See also Claunch v. State, 82 Tex.Crim. Rep., 199 S.W. Rep., 483; Johnson v. Elliott, 168 S.W. Rep., 968.

In the original opinion, in the case from the Court of Civil Appeals at San Antonio, cited and quoted from, it is clearly shown that the business followed by relator, and doubtless by others who have followed the same business, was most pernicious and vicious; that it had a tendency to, if it did not actually produce, fraud, and fabrication of a most injurious character. There can be no doubt under the authorities and reason that the Legislature had the right to enact the law attacked by the relator herein, and that it is valid and constitutional.

Particular stress and a great many authorities are cited by relator in his motion and brief herein, contending, in effect, that where it was stated in the original opinion, that the common law, in effect, forbade the sale of any chose in action, and that our statute (art. 583, R.S.) changed the common law so as to make them assignable, is not correct, relator claiming and citing many authorities to the effect that either at common law as in later years declared, and particularly in equity, all choses in action were assignable. Perhaps the said statement in the court's opinion may have been too broad, but whether the statement therein was correct, or relator's contention is correct, did not and could not materially affect the conclusion reached in the original opinion. So that it is unnecessary now to further state or discuss that question. It might be conceded for the sake of the argument that relator's contention is correct and the statement by the court was incorrect. The same result from the authorities would be reached.

The motion for rehearing is overruled. Overruled.