Ex Parte Flake , 67 Tex. Crim. 216 ( 1911 )

I did not participate in the original decision of the case. However, upon motion for rehearing I have sought to give the questions involved a proper consideration in view of the fact that the result of that consideration has led me to a difference of opinion with my brethren. I have reached the conclusion, and am fully persuaded, that my brethren were originally in error and have wandered still farther in error in overruling the motion for rehearing.

I have read with a great deal of interest the brief and argument of counsel for relator, Messrs. Odell Johnson, and S.C. Padelford, and believe they have so thoroughly covered the questions involved that it would be a useless consumption of time and work on my part to add to what they have said and written. These gentlemen have given the questions involved in this case thorough consideration, and have so thoroughly and ably briefed the different propositions that it is unnecessary for me to do more than to adopt the argument and brief as my dissenting opinion. The reasons urged by them, and the arguments advanced, and the authorities cited completely answer the majority opinion, and their reasoning remains so thoroughly and completely unanswered by that opinion I content myself with adopting it as my dissent and the reasons therefor. Their argument and brief are as follows:

"To the Honorable Justices of said court:

Now at this time comes the relator, Tom Flake, and makes this his motion for a rehearing herein, and prays the court to set aside the order and judgment of this court holding that the relator be remanded into the custody of the sheriff of the lower court, and in holding that Act No. 69, chapter 20 of the General Laws of the State of Texas, passed at the regular session of the Legislature of Texas, convening on January 12, 1909, and adjourning March 13, 1909 — the said law being printed on pages 53-55 of the General Laws of the State of Texas, passed by the Thirty-First Legislature at its regular session — was constitutional, because under a proper construction of the Constitution of this State and of the United States, the said Act is plainly and unmistakably unconstitutional and violates both of said Constitutions, as is fully shown by the application for a habeas corpus, and for grounds of said motion for a rehearing, relator shows the following:

First. "The said Act of the Legislature mentioned above is unconstitutional in that it violates, and is repugnant to article 3, section 35 of the Constitution of this State, because there is more than one subject stated and embraced in the caption or title of said bill. The title of said bill embraces the subject of levying an occupation tax on the business or calling of soliciting orders for the sale of intoxicating liquors within local option territory, and another and different subject which is the levy of an occupation tax on the business of conducting and carrying on what is commonly known as a cold storage, or following the business of any kind or character of bailment of intoxicating and nonintoxicating liquors within local option territory. These two businesses are separate and distinct. One relates to the sale of intoxicating liquors, and the other relates to the business of what is commonly known as cold storage, or the business of a bailor of intoxicating and nonintoxicating liquors, whether for hire or not in local option territory, and there being two subjects expressed in the title to the Act, it is violative of section 35, article 3 of the Constitution.

"This constitutional provision is mandatory and should be given a reasonable and plain and common sense construction, and the court erred in holding otherwise.

"Gunter v. Texas Land Mort. Co., 82 Tex. 502; State v. Mallinson, 82 Tex. 512; Cannon v. Hemphill,7 Tex. 184; City of San Antonio v. Gould, 34 Tex. 49 [34 Tex. 49]; State v. McCracken, 42 Tex. 383.

Second. "If the whole Act as construed by the court states a different object and purpose from that stated in the title or caption of the Act, then said law is void under article 3, section 35 of our Constitution. If, as decided and held by this court, this law under consideration embraces but one subject and object, which is the `regulation and prohibition of the liquor traffic in territory where it has been prohibited,' then the subject of the law is altogether different from that stated in the title or caption of the Act, because the title or caption of the Act if given the broadest and most liberal construction, contains one subject, which is the levying of an occupation tax, or the taxing of the said businesses named in the caption. The caption must be construed by itself, and can not be aided by the law, or any outside matter, and you must give the words of the statute the meaning which is given to it not only by the law, but every other person, and giving it that meaning, the caption of the law contains but one subject, which is the taxation of certain businesses. This being so, if the construction of the law by this court is correct, and if the only subject, and the one subject of the law is the regulation and prohibition of the liquor traffic in territory where it has been prohibited, then the subject of the law is different from that stated in the title by the Legislature, and the law is void and unconstitutional, and this court erred in holding otherwise.

Remarks. "But if the title to this Act by giving it a very liberal construction, does contain the subject of the Act, then the subject of the Act is, and can be only that of levying an occupation tax, upon the several callings or professions mentioned in the caption and title of this Act. This Act mentions in clear, unmistakable language the subject of the law intended to be passed, which is the levying of an occupation tax upon the business of soliciting the sale of intoxicating liquors in local option territories, and the levy of an occupation tax upon the business of what is commonly known as cold storage, or the bailment of intoxicating or nonintoxicating liquors, within local option territory, and providing for the enforcement of this tax.

"That is, by giving this caption or title the very broadest and most liberal construction which any court could give, the subject is the levy of an occupation tax on certain businesses and providing for the collection of this tax. The caption or title so states, and uses plain, well known, and unmistakable language. He, who runs, may read and understands what this caption says; it says it is for the purpose of levying an occupation tax. Everybody knows what an occupation tax is, even the Legislature of Texas.

"Now this court in this opinion for the purpose of holding this remarkable law constitutional, states that this law embraces but one subject, object, and purpose, to wit: `The regulation and prohibition of the liquor traffic in territory where it has been prohibited.' (See near bottom page 3 of opinion.)

"The whole caption or title of this law is not quoted or referred to by the court, but it is in words as follows:

"`An Act to levy an annual occupation tax on the business of selling or offering for sale any intoxicating liquors by soliciting or taking orders therefor in any quantities whatever in any county, justice precinct, town, city or other subdivision of a county where the qualified voters thereof have by a majority vote determined that the sale of intoxicating liquors shall be prohibited therein; also levying an annual occupation tax for the keeping, maintaining or operating of any `cold storage or any such place where intoxicating or nonintoxicating liquors or beverages are kept on deposit for others under any kind of bailment within the limits of any such local option territory, providing for the issuance of licenses and fixing penalties for the violation of this Act, and providing for injunction to prevent its violation, and declaring an emergency.'

"The second section of the title which refers to that section of the law under which relator stands indicted reads as follows: `Levying an annual occupation tax for the keeping, maintaining and operating of any cold storage or any such place where intoxicating liquors or nonintoxicating liquors or beverages are kept on deposit for others under any kind of bailment within the limits of any such local option territory.'

"Now this court takes out the following in the caption, to wit:`Levying an annual occupation tax for the keeping, maintaining, or operating of any cold storage or any such place where intoxicating or nonintoxicating liquors or beverages are kept on deposit for others under any kind of bailment,' and substitutes the following therefore: `The regulation and prohibition of the liquor traffic.'

"There is not one word in the title to the Act as given by the Legislature that is the same as any one word in the title, as constructed by this court; that is, take the language of this court as to what is the subject and object of this law, and which must be incorporated and contained in the title, and there is but one word in this constructed title, which is in the title of the law passed by the Legislature.

"It is the law that the title must be construed with reference to the language used by the title itself, and not in view of the body of the Act itself; that is, the title must be construed by the language used in the title itself, and you can not even look to the body of the Act for the purpose of construing the title, and if the body of the Act is as this court construes it to be, then the subject of the body of the Act is not only stated in the title, but the title states altogether a different subject, which is the levy of an occupation tax.

"See People v. Joyce, 92 N.E. 607; 246 Ill. 124. We also refer your Honors to The State v. Coffin, 74 P. 962; McKellar v. City of Detroit, 57 Mich. 158; Fort Worth Denver Ry. Co. v. Lloyd, 132 S.W. 899; Western Union Telegraph Co. v. State,62 Tex. 630; Elliott v. The State, 91 Ga. 694; 17 S.E. 1004; McDuffie v. The State, 87 Ga. 687; 13 S.E. 596; Crabb v. The State, 88 Ga. 584; 15 S.E. 455; Knight v. The State,88 Ga. 590; 15 S.E. 457; State v. Young, 47 Ind. 150.

"The title and caption to this Act relates to the levy of anoccupation tax, and the only subject stated in the title relates to the levy of an occupation tax, and there is not one word in the caption which states that its subject is for the purpose ofprohibiting and regulating the trade in intoxicating liquors in local option territory. In that portion of the caption, which is the latter clause of the caption, the caption refers to both intoxicating and nonintoxicating liquors; just as the caption in the Georgia cases, referred to above, stated that it was an Act to prohibit the sale of spirituous liquors, used the word spirituous or intoxicating liquors, and the Act prohibited the sale of intoxicating liquors in general of any kind or quality whatsoever. If the body of the Act is as this court construes it to be, and if its subject and object is the regulation and prohibition of the liquor traffic in territory where it has been prohibited, then the subject stated in the title is limited to the levy of an occupation tax on the businesses therein named and provided; that is, the subject as unmistakably and clearly stated by the Legislature in the title, is the levy of an occupation tax, and this court can not construe the levy of an occupation tax so designated by the Legislature, as to make the language of the Legislature altogether different, and to give it an altogether different meaning; that is, this court can not legislate by means of judicial construction, and substitute language in the title, which is not included in the title, and which has an altogether different and a broader meaning than the language used by the Legislature in the title and caption.

"Cooley on Constitutional Limitations, 7th ed., pp. 89-91, and especially the notes; Fort Worth D.C. Ry. Co. v. Lloyd, 132 S.W. Rep., 899; Gulf, C. S.F. Ry. Co. v. Stokes, 91 S.W. 328; Fornia, v. Frazer, 104 N.W. 147; Commonwealth v. Kebort,61 A. 895.

"This court must take one of the horns of the dilemma. The caption states as the subject and object of this law the levy ofan occupation tax. These are the words used by the Legislature to convey the precise meaning of the lawmakers, and this court can not substitute other and different language in this title, and the court can not even go to the body of the Act, as is shown by the authorities above, for the purpose of construing the title, and if the court can not go to the body of the Act for the purpose of construing the title, then this court can not go to other and separate and distinct Act, and can not go into the vague realm of contemporary history, but the court must take the plain, unmistakable language of the title itself, and the plain and unmistakable language of the title itself is the levy of anoccupation tax, and if the Act is not the levy of an occupation tax, but is a police regulation, then the body of the Act is altogether different from the title, which is the levy of an occupation tax, and consequently violates article 3, section 35, and is absolutely null and void.

"In construing not only the title to an Act, but in construing the body of the Act, wherever the language is plain and unmistakable, there is no room for construction, but the court must take the language of the caption, or the language of the law and give it its plain import and meaning. There is not a word in the caption, nor a sentence, nor a clause that is not plain and unmistakable. There is no ambiguity in the caption; it is consistent, plain, and unmistakable, and all that this court can do is to give this language its plain and unmistakable meaning, and if you do, it means nothing but the levy of an occupationtax, and the enforcement of its collection.

"The Fire Ins. Co. of Phil. v. Love, 101 Tex. 376 [101 Tex. 376]; Missouri, K. T. Ry. Co. v. Blanks,125 S.W. 312; Blanks v. The Missouri, K. T. Ry. Co.,116 S.W. 377; The State v. Tibbets, 52 Nebr., 228, 66 Am. St. R., 492; Brown v. Buck, 75 Mich. 274, 13 Am. St. Rep., 438; Cooley on Constitutional Limitations, pp. 88-91.

Third. "This court erred in not holding that this law was unconstitutional, and was in violation of article 8 of section 2 of the Constitution of Texas, which provides: `All occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax.'

Remarks. "The caption of this Act unmistakably, directly and specifically states that it is the levy of an occupation tax upon certain businesses and callings. The body of the Act expressly and specifically states that it is the levy of a tax on these callings. The counties and the cities have no authority to levy a tax or to impose a license upon any individual corporation or person, except under article 8 of the Constitution.

"This statute levies a $2,000 tax on the callings and professions therein mentioned for the State. It authorizes the county to levy one-half of this amount, or $1,000, as a tax, and it authorizes the cities to levy the same amount, and when levied by the county and the city it becomes a tax and collectible by the county and city as a tax, and the Legislature obtains the authority to authorize the cities and the counties to levy this occupation tax under and by virtue of article 8 of the Constitution, and this very law was passed and its provisions regulated in accordance with section 1, article 8 of the Constitution. In other words, this statute was passed under and in accordance with some of the provisions in article 8 of the Constitution, but it violates section 2 of this article, in that the occupation tax so levied is not uniform throughout the State of Texas. This court can not avoid this inhibition in the Constitution by merely calling the Act a police regulation. Calling it a police regulation does not make it so. The Legislature in the enacting clause calls it an occupationtax, and in the body of the Act, it calls it an occupation tax, and it authorizes the counties and the cities to levy the $1,000 each as an occupation tax, under that article of the Constitution so authorizing counties and cities to levy one-half of such an occupation tax.

"There is not only not one word in the title or caption of the Act that is obscure and unintelligible; there is not only no ambiguity in the caption or title of the Act, but there is not a word in the body of the Act that is obscure or unintelligible, and there is no ambiguity in the body of the Act. Any person of common knowledge and understanding can read and understand not only the plain and unmistakable title, but even the body of the Act. This court can not take plain and easily understood and intelligible words used by the Legislature and by the wizardy of construction eliminate these words and sentences, and substitute others than those used by the Legislature. Courts can not take the words used in the title of a statute, or in the body of the law, that have a plain, well defined meaning and significance, and by construction limit these words, and give them altogether a different meaning and significance, as we think this court has done, in order to hold this extraordinary law constitutional.

"The Legislature says in plain and unmistakable language that it is an occupation tax law, but this court in order to hold it constitutional construes the law to be a police regulation and not what the Legislature says it is. This court in passing upon exactly this same question in the case of `Ex parte Woods,52 Tex. Crim. 575, 108 S.W. 1171,' held the principles of law contended for by us to be correct, yet this court in its opinion does not even allude to this case. It has been the holding of this court since 1876 that article 16, section 20, applied alone to the sale of intoxicating liquors, and that the majority vote in the localities therein mentioned could not prohibit anything else except the sale of intoxicating liquors. This court has also held that a law which prohibited, or levied a prohibitory tax upon the business of cold storage was inimical to our Constitution, and is null and void; and the same holding has been held by the Supreme Court of West Virginia, and other States, as shown by the authorities cited in our argument heretofore filed, yet this court nowhere refers to and discusses the principles laid down in these cases, and the Woods case is the last case decided by this, or any other court in this State, where this identical question was raised and settled.

"In the Woods case, this court holds that that law, which is as much a police regulation as this, was a tax, and came squarely and directly contrary to section 2, article 8 of our Constitution. The general rule of construction holds that courts must give the language of a statute its plain and ordinary meaning. Our Legislature has given the court a rule by which to construe the statutes of this State. It is as follows: that the law `shall be construed according to the plain import of the language in which it is written without regard to the distinction which is usually made between the construction of the penal laws and the laws upon other subjects.' Penal Code, article 9.

"This statute levies an occupation tax upon the business which is commonly known as cold storage, yet this court in order to hold this law constitutional construes this law so as to make it read as follows: `That the occupation tax shall be levied upon any business known as cold storage where intoxicating liquors are deposited; that is, the statute uses this phrase: `The business commonly known as cold storage.' There is nothing obscure in this. There is nothing unintelligible. It is plain language, and the Legislature says that the court must give to the words `cold storage' the meaning that is commonly and generally given to that word. That is, the Legislature defines and points out what kind of a cold storage it means. It is one that is commonly or generally called cold storage, yet this court construing it gives the words a very limited and restricted meaning, to wit: a cold storage which is limited to the business of storing alone intoxicating liquors; that there is only one character of liquor which is stored in cold storages. If your Honors have ever been in a saloon, you must have observed that the great bulk of the intoxicating liquors and the most hurtful of intoxicating liquors are never put in cold storage; they are put in the shelves, and in the cases, and it is only the malt liquors which are put in cold storage. Whiskies, brandies, gin, chartreuses and other such intoxicating liquors are never put in cold storage. It is only the bottle and keg beer that is put in cold storage, and a place that is commonly called a cold storage is a place where very little beer is stored, as your Honors have given your personal experience about seeing the labels on tin top floating in tubs of water in certain local option districts in arriving at the construction of this law, we will state that it has been our judgment and knowledge that the regularly commonly known cold storage plants, even in such a local option town as Cleburne, did not follow the business of storing even keg and bottled beer, but that the few organizations or lodges, such as the Sons of Herman — fraternal organization — who were composed of Germans in Cleburne, and the Eagles, because it was cheap and done for a favor, stored their beer in the ice plants, and starved out the business and place commonly known as the business of cold storage in Cleburne. But the word `cold storage' as commonly known certainly, certainly, does not mean the cold storage alone of intoxicating liquors.

"Again, this court in order to sustain this law construes in one place that nonintoxicating liquors mean intoxicating liquors, and in another place construes that the general term used by the Legislature of nonintoxicating liquors means nonintoxicating malt liquors. The Legislature divides the genus liquors into two divisions, which includes all liquors comprehended within this genus; that is, it puts a tax upon the bailment of the genus liquor, because intoxicating and nonintoxicating liquors including the whole genus, yet this court construes that one branch of this division which includes the whole genus should be limited to one separate, sole, distinct liquor — nonintoxicating malt liquor.

"The court says that the intoxicating liquors is plain and does not need any construction. Is intoxicating liquors any plainer than nonintoxicating liquors? Is there anything more to call for the construction of the word non-intoxicating, than for construing intoxicating liquors? The one is as plain and as intelligible as the other. Intoxicating liquors means all liquors which intoxicates; nonintoxicating liquors means all liquors which do not intoxicate. The one is as plain, as intelligible as the other, and if there is any difference at all, the nonintoxicating is plainer, simpler, and is more easily understood than intoxicating liquors, but if intoxicating is plain and simple, and does not need any construction, and if you know what intoxicating means, then you certainly know what nonintoxicating means, because it is just the opposite of intoxicating. If you know what intoxicating liquors are and what liquors are intoxicating, then you know that all other liquors are nonintoxicating, and the one word is just as simple, as plain, and intelligible as the other, and this court is driven to the extreme verge of construction, in order to hold this law to be constitutional, to make a difference in the plainness and intelligibility in the word intoxicating and nonintoxicating.

"This court arrives at the conclusion that the word nonintoxicating meant nonintoxicating liquors, where the Legislature uses it in its broadest sense to mean one liquor, to wit: nonintoxicating malt liquors, because one Mr. Cable introduced another law on the same day before the Legislature, which was passed on the same day by the Legislature, passed by Senate on the same day, and approved by the Governor on the same day, levying a tax alone on the sale of nonintoxicating malt liquors in local option districts, and because this man introduced into the Legislature and the Legislature passed, and the Governor approved this law in plain language limiting the tax to one liquor, the same man at the same time wrote this law, and the same Legislature at the same time passed this law, and the same Governor at the same time approved this law providing for a tax on the bailment of all nonintoxicating liquors, and because in one instance they limited the tax to one liquor when it applied to the sale, the Legislature intended to limit the tax to one liquor, when applied to the business of bailment. It seems to me that the very converse should be true. If this man wrote the laws at the same time, and the Legislature passed them at the same time, and the Governor approved them at the same time making one law cover all nonintoxicating liquors, and restricting another law to one nonintoxicating liquor, all being done at the very identical same time, why is it that the Legislature limited one, and did not limit the other? And why is it that this court holds that the Legislature intended to limit all? That is, this court says that the Legislature in one law where it in effect used the word all intoxicating liquors intended to mean only one, because in another and a different law it said it taxed the sale of only one intoxicating liquor.

"Suppose a landlord should make a contract on a large farm with several tenants; the tenants to cultivate the farm exactly alike, but in his later contract made at the same time, and written by him at the same time, he granted to one tenant the right to use only the gray mares on his place during the tenanture, but to another tenant he granted the right that he might use all of the horses on the place during the tenanture, would this court construe that the contract where he granted the right to one of the tenants to use all of the horses, meant that he could only use the gray horses, merely because he specifically limited in another contract another tenant to the use of gray horses. If there was any mistake at all, the mistake would be as to the limitation, and in using the limited language instead of using the general language.

"We have read all of the authorities referred to and cited by your Honors, and we have not found one holding that where the Legislature in one separate and distinct law applied the law to the whole of a different subject, and then in a separate and distinct and other law applied it only to one species of that subject, that a separate and distinct law where the Legislature applied the law to the whole of a subject could be limited by this other separate and distinct law which applied it only to one subject, when the two subjects were different; that is, one of the subjects being a levy of a tax on one character of business, and the other law being the levying of a tax on another character of business.

"The only authorities which this court refers to is that old rule of construction where the law forbade the drawing of blood generally, and it was construed by necessity that it did not mean the drawing of blood by physicians to save life. In that character of cases the court gives the law its general meaning as used by the Legislature, but it excepts out of the general language used in the law these rare exceptions by necessity in almost unheard extreme cases; these cases do not hold that general language is and should be applied only to one specific isolated case, and that where the law uses general language a specific case from necessity is separated from and limited out of the general language. Here the court calls in question a rule for which it has not a precedent, even in these extraordinary cases. We venture to say that there is no case where the general language of the law defining a genus is made to mean, and is made to apply only to one specific item or species as this court does in this case.

"On page 15 of the opinion of this court near the bottom of the page this court commences to give what it conceives to be the meaning of the following words: `The business of keeping, maintaining, or operating what is commonly known as a coldstorage or any place by whatever name known, or whether known or not where intoxicating, or nonintoxicating liquors or beverages are kept on deposit for others.' The court admits that if the construction and meaning which relator seeks to give to the wordintoxicating and nonintoxicating the Act is invalid under the Constitution, and the court had prior to this portion of the opinion stated that it was not necessary to give any construction to the phrase `intoxicating liquors' as the words defined themselves, but the court conceives that there is some obscurity or ambiguity about the words nonintoxicating liquors, and proceeds to construe that phrase when the law of all the courts is that where words are plain and intelligible, there is no necessity for a construction, but this court in arriving at the meaning of the phrase nonintoxicating liquors, refers to Webster's Unabridged Dictionary for a definition. The plain import of the language used is the statutory rule prescribed in Texas Penal Code, article 9.

"As is shown, Mr. Webster gives two definitions: 1st: `Any liquid or fluid substance as water, milk, blood, sap, juice, and the like; 2d: especially alcoholic or spirituous fluid, either distilled or fermented.' Here Mr. Webster stops in his definition, and the court holds that by the word liquor in the statute the Legislature meant solely and alone the second definition. In this clause, this court is very unfortunate, because this court gives to the second limited meaning and definition of the word given by Mr. Webster, the wrong meaning; that is, the court gives too great a scope and too extended a signification to the second definition, one greater than given by Mr. Webster himself. In other words, the word liquor has two meanings or significations, one a general and one a specific or limited meaning, according to Mr. Webster, and according to the usual common signification of the word; when we use the word liquor as applied to drinking, we always mean intoxicating liquor — that is its limited sense. The dictionary and encyclopedia that is most often used by the courts of this country in defining words is that of the `Century Dictionary and Encyclopedia.' It is more extended than that of Mr. Webster's, and this authority is adopted by the Supreme Court of the United States and others. The Century gives four significations or definitions of the word liquor — 1st: a liquid of fluid substance as water, milk, blood, sap, etc. This first is the same definition as given by Mr. Webster; 2d: `A strong or active liquid of any sort.' Under this second definition this authority five more limited or specific meanings of the word liquor designated (a) (b) (c) (d) and (e) and then it gives another more limited and qualified meanings of the word liquor where it is qualified and limited by an adjective, or other word. In the subdivision (a) the definition is given as follows: `A alcoholic or spirituous liquid either distilled or fermented, and intoxicating beverage, especially a spirituous or distilled drink, as distinguished from fermented beverages, as wine, beer.' Then it gives four other limited specific meanings to this word, and then it gives the other meanings of the word qualified by adjectives as `boiled off liquor' `gas liquor,' `malt liquor,' `spirituous liquor,' etc.

"According to the Century Dictionary the second definition or signification of the word as given by Webster means an intoxicating spirituous or distilled drink as distinguished from fermented beverages as wine and beer. That is, subdivision (a) of the second definition of The Century Dictionary of liquor, limits the word not only to an intoxicating liquor, but to a spirituous or distilled intoxicating liquor eliminating fermented beverages such as beer, wine, etc. In other words, the Century Dictionary and Encyclopedia states that Webster's definition of it eliminates malt drinks altogether. This definition is adopted by the Supreme Court of the United States, but this definition of Webster has received the construction of other courts.

"In the case of Dolan v. McLaughlin, the 64 N.W. 1076-1078, on page 1078, the court gives the following definition of liquors, quoting from Webster, and showing exactly what Webster means in his second definition, which has been adopted by this court. In the above decision the court uses the following language: `The word (liquor) is defined by Webster (1) Any liquid or fluid substance as water, milk, blood, sap, juice, and the like. (2) Especially alcoholic or spirituous fluid, either distilled or fermented, as brandies, whiskies, wine, beer, etc.' `If the witness in describing what liquor had been sold to McLoughlin had uniformly described it merely as liquor, it might' be proper for the jury to assume that it was in that class specifically referred to in the second definition above given, that is Webster's definition, but this was not the case. There was evidence that the liquor furnished by Dolan to McLoughlin at least on one occasion was seltzer, and within one of the definitions given above seltzer is clearly embraced. Under these circumstances it was error to instruct the jury that whatever liquor is shown to have been sold in a licensed saloon is presumed to be intoxicating.' That is, this court holds that Webster's second definition is just as the second definition in the Century, and applies solely and alone to intoxicating liquors.

"In the case of Brass v. The State, 34 Southern, 308, the Supreme Court of Florida in giving the meaning of liquors as defined by Webster in his second definition adopted by this court, uses the following language: `Does the omission of the word `intoxicating' before the word liquors in the form of information provided for by the Statute infringe this rule? We think not. The word liquor may be used in either of two senses. The first is practically synonymous with liquid, as the second as given in Webster's Dictionary is second specifically alcoholic or spirituous fluid either distilled or fermented, as whiskies, brandies, wine, beer, etc. In common parlance the word is uniformly understood in the latter sense when used as it is here in speaking of a dealer in liquor. This being true when the statute first prescribes a penalty for dealing in intoxicating liquors, and then prescribes a form of indictment to be used in prosecuting for a breach of this law, using therein only the word liquors, it is beyond cavil that the word is used in the special sense of intoxicating liquors as above defined.' (By Webster, meaning Webster's second definition.)

"And that under such an indictment the sale only of such liquors can be shown.

"In the late case of Carswell v. The State, 66 S.E. 488, the Supreme Court of Georgia has defined the word liquor as follows: `It is true that the word liquor has more than one meaning, and that in the broad sense it included any liquid or fluid substance such as water, milk, blood, etc., but it has also the special sense, and meaning, of an intoxicating beverage.' The Century Dictionary after giving the general meaning gives also the definition; `a strong or active liquor of any sort, especially an alcoholic or spirituous liquid, either distilled, or fermented; an intoxicating beverage, especially a spirituous or distilled drink as distinguished from fermented beverages as wine and beer.'

"Further on in this definition is cited a quotation from Shakespeare — Hamlet 5, 1-68. `Fetch me a stoup of liquor.'

"It is said in the discussion of the definition that the words used absolutely has meanings different equal to the industry in which it is used; that is, the second definition as given by Mr. Webster, and which is adopted by this court, is held by all of the courts to mean an intoxicating liquor, and by two of the courts — the Supreme Court of Georgia, the Supreme Court of the United States, and by the Century Dictionary as a spirituousintoxicating liquor, excluding even a fermented intoxicating liquor. So the definition of unintoxicating liquor given by your Honors means an intoxicating liquor. In other words, Webster's second definition covers that phrase in the law coveringintoxicating liquors, and you have got to go to the first definition of Webster to get your unintoxicating liquor. Where can your Honors go now for a definition of unintoxicating liquors? You have to go to the first definition of Webster, or the broad general second definition of the Century, because the second definition of Webster means an intoxicating liquor, and Mr. Webster gives only two definitions of liquor, and in his definition divides the genus liquor into two great classes; thesecond covers intoxicating liquors, and consequently the first must cover and does cover nonintoxicating liquors; that is, the Legislature in this Act divides up the genus liquor exactly as Mr. Webster does into intoxicating and nonintoxicating liquors, which covers all liquors and the second definition of Mr. Webster covers intoxicating liquors, and the first covers nonintoxicating liquors.

"Further, the Century says that when you refer to a man as being in liquor, you mean he is drunk, and everybody knows what you mean when you use the expression that an individual is `liquoring up.' You mean, he is getting drunk, and drinking intoxicating liquor. Everybody knows what you mean by a liquor dealer. You mean a dealer in intoxicating liquors. If the statute had merely used the word liquor, then this court could apply to it the second definition of Webster, which would mean an intoxicating liquor, but the Legislature as we have stated above, gives both of the significations or definitions that are given by Webster giving the intoxicating liquor covering his second, and the unintoxicating liquors which would cover the first, or a large portion of the first, and how this court can take Webster and make intoxicating liquor, the second definition, mean a nonintoxicating malt liquor, is beyond our feeble comprehension.

"We think that this court was a little unfortunate in using Webster's definition, as Webster's definition, and the definition of the Century Dictionary, both of which are authoritative, and sanctioned by every court in the American Union, and the United States Supreme Court, holds that the word liquor in its special or secondary sense, and in the sense in which Mr. Webster used it, means an intoxicating liquor, and excludes nonintoxicating liquors, and the first definition of Webster means all nonintoxicating liquors, and our statute by putting a tax on the bailment of intoxicating liquors covers all of the liquors included within the second definition of Webster, and when it put it on nonintoxicating liquors also, it included all, or at least a large portion of the liquors included within the first definition of Webster. This court has cited a large number of authorities, such as the Mugler case, and the Munn case, and the other cases holding that a State has the right under its police power to prohibit the sale of intoxicating liquors. The only question decided in the Mugler case was that the State of Kansas had the power to adopt a constitutional amendment prohibiting the sale of intoxicating liquors within that State, and that such a prohibition was not inimical to the fourteenth amendment to the Constitution of the United States. We have not and do not question these decisions.

"We, in no portion of our argument, in the least degree attempted to call in question the Constitutionality and the validity of section 20, article 16 of our Constitution. This article authorizes the different localities under a proper Act of the Legislature to prohibit the sale of intoxicating liquors within the limits of certain subdivisions of our State. This section of the Constitution and all of the laws passed to prevent the illegal sale of intoxicating liquors within local option territory are constitutional and valid. Our laws make ample provision for punishing those who make illegal sale of intoxicating liquors within local option territory, and the Act of 1907, also makes it illegal, and absolutely prohibits any person who keeps on deposit — that is, any bailor — who holds or possesses or keeps intoxicating liquors within local option territory for the purpose of illegally selling same, so the wrongful and illegal bailment of intoxicating liquors in local option territory is absolutely forbidden by another and a separate and a distinct law. This court will not accuse the Legislature of so silly an act as to levy a tax upon an illegal bailment of intoxicating liquors. A law making illegal the bailment of intoxicating liquors in local option territory for the purpose of evading the law that is for the purpose of making and furthering illegal sales of such liquor has heretofore been passed, and is now in force, so an illegal bailment of intoxicating liquors within local option territory was and had been long prior to the enactment of this law fully covered and provided for. This court must hold that the Legislature would not license — that is, render lawful — because the word `license' means to make and to render lawful an unlawful act. It had already rendered unlawful any bailment of intoxicating liquors within local option territory kept and held for the purpose of evading the local option law, and rendered the places where such liquors were kept as nuisances, and places which the public authorities can abate. This being so, this tax is levied only upon a cold storage business that is run illegally, and that does not affect the illegal sale of intoxicating liquors in local option territories. It levies a tax upon the bailment both of intoxicating and nonintoxicating liquors, where the bailment is not for the purpose of aiding in the illegal sale of intoxicating liquors in local option territory, consequently this law applies and the business can be run and as legally run and conducted in local option territory as it can in territories where local option does not prevail. The business that is taxed in this case is a business that can be lawfully run throughout the borders of the State of Texas.

"If the court, or any one else will read the caption of this Act, and then read the Act itself, that is, the second clause or section of the Act, which is only involved in this case, it is anoccupation tax upon a legitimate business, which can be conducted and pursued not only in local option territories but in all other portions of our State. This is the outward plain meaning that is derived, and can only be derived from the language of the Legislature in the Act, and in its title, but this court by going out and hunting up what it calls contemporary history, and by making visits into local option territory, and examining tubs of water with ice in them, and with bottles of `U know' and `I know' and `We all know' with labels floating on the top, conceives that the Legislature had some kind of an intention beneath and ulterior to the intention which is manifested by the plain and unmistakable language of the law; that is, that the Legislature although from the language of the statute it enacted a law which levied an occupation tax upon a lawful business, yet that the ulterior intention of the Legislature was by this method to use apparently the power conferred upon it by the Constitution to levy an occupation tax upon a legitimate business to use this power for the purpose of aiding in the enforcement of the criminal laws of this State affecting the enforcement of the local option law, that is, the Legislature by the wording of the caption of this section of the statute, apparently and outwardly calls into requisition a power conferred by the Constitution to levy a legal tax upon a legal business, but its concealed intention was to use the taxing power for the purpose of enforcing the local option law; the Legislature could not directly and squarely forbid the bailment which it taxes in this law, because it would be unmistakably unconstitutional, but it takes and covers up its ulterior motive under the guise of the legal tax to accomplish that which it could not do directly. That is, the Legislature veils its true purpose and holds out to the public the hands of Esau while in truth and in fact it speaks with the voice of Jacob. That is, this is the intention which this court construes that the Legislature means and this court has to go out and away from the language of the Act and its title, and into what it calls contemporary history, and to another Act of the Legislature in order to give and confer upon this Act this veiled purpose and intention of the Legislature. This is the very character of legislation which the Constitution condemns and it is this character of legislation that the highest court of this State should unequivocally condemn, and it is for this very reason that our Constitution provides that the Legislature shall state in the title of every enactment the true subject which is to be incorporated in the law.

Fourth. "This court erred in holding that this Act was not in contravention of section 3, article 1 of the Constitution, and section 17, article 1 of the Constitution, and section 19, article 1 of the Constitution of the United States, because every citizen of Texas has the right to follow the business of cold storage and bailment of intoxicating or nonintoxicating liquors in every county and State, so that he does not infringe or violate any law of this State; that is, every citizen has the right to pursue the callings taxed in the second section of the Act in every county of the State just so he does not follow this business of bailment for the purpose of aiding in the illegal sale of intoxicating liquors in local option territory, and this law places this prohibitory tax upon these lawful businesses alone in certain sections of the State of Texas, and allows the citizens of other portions of Texas to follow these lawful businesses without let or hindrance, and without price.

Fifth. "This court erred in holding that this law was not inimical to the fourteenth amendment to the Constitution of the United States, because this law does deprive the citizens of the United States living in local option territories of the right and privilege of that business commonly known as cold storage, and the business of the bailment of intoxicating and nonintoxicating liquors within local option territory, and the Legislature of this State has made a discriminating classification against the citizens of local option territories, who are citizens of the United States, and deprives them of valuable property rights, and the inalienable rights of the liberty of a free man in following a legal and legitimate business.

Sixth. "This court erred in holding that this Act was not in violation of, and inimical to section 13, article 1 of the Constitution of the State of Texas. This court referring to the fact that the Legislature punishes the business of the illegal sale of intoxicating liquors within local option territory by confinement in the penitentiary, and holds that such a punishment is not excessive. We agree with the court in this conclusion, but the punishment that is inflicted in this case is a punishment merely for the failure to pay an excessive tax on legitimate business. The one is the wilful violation, and the heedless and reckless disregard of a criminal law of this State. This is merely the failure to pay a tax, and an unreasonable and unconscionable and illegal tax. In addition to authorities cited in our former argument we cite Busch Co. v. Webb, 122 Fed. Rep., 655, 669.

Seventh. "This court erred in holding that this law did not not only violate the Constitution of this State, but the Constitution of the United States."