Searcy v. State , 40 Tex. Crim. 460 ( 1899 )

Appellant was convicted under article 199, Penal Code, for selling liquor, being goods, on Sunday, and his punishment assessed at a fine of $20, and he appeals.

The court properly overruled appellant's motion for continuance. No diligence was shown.

Appellant made a motion to quash the indictment and in arrest of judgment, on the ground that the statute constituting this an offense, together with the succeeding statute (article 200, Penal Code), making certain exemptions, is unconstitutional, in that it is class legislation. In other words, he insists that the exemption from the operation of the law of keepers of drugstores, etc., is a personal exemption in favor of such citizens, and authorizes them to deal in goods, wares, and merchandise that other citizens are inhibited from dealing in. If this were a correct construction and interpretation of the law, his contention would be sound. But we do not so regard it. The exemption, as we construe it, is in favor of the article sold by the persons who deal in such articles; and it was not only competent for the Legislature to pass a Sunday law (Ex Parte Sundstrom, 25 Texas Criminal Appeals, 133), but the Legislature was also authorized, under its police power, to exempt certain articles of merchandise as common necessities, the sale of which should not be forbidden by law. Drugs and medicines were very properly placed in this category, and the keeper of a drugstore is authorized to sell drugs and medicines, but not other goods that do not belong in this class. We might take judicial cognizance that certain articles are drugs or medicines, but this is often a question of proof. Todd v. State, 30 Texas Crim. App., 667. Whisky is not ordinarily placed in this category, but regarded as a beverage, and comes within the inhibited articles. Day v. State, 21 Texas Crim. App., 213. There is no pretense here that same was sold as a medicine or by a druggist.

The fact that article 187 of the Code of 1876 was not brought forward by the codifiers in the new Code makes no difference in the construction above placed on said article. It is our duty, even if there were any difficulty as to the construction of this article, to uphold it as constitutional, if the matter is of doubtful import, as it will be presumed that the Legislature did not intend to violate the Constitution in passing the article in question, and that construction should be given it which will uphold its constitutionality. Bish. on Crimes, 93. We do not believe, however, there is any difficulty in regard to the construction which we have placed on this article; and, in our view, the Court did not err in overruling the motion to quash or in arrest of judgment on the ground that the act was unconstitutional. There being no error in the record, the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.