Ex Parte Hollingsworth , 83 Tex. Crim. 400 ( 1918 )

There are two propositions involved that I desire to mention, and incidentally discuss briefly: First, that the Act under consideration was intended to operate upon the military forces of the United States at training camps, forts, arsenals, ship yards and aviation camps as a regulation and discipline of their conduct and in their contact with the citizenship of Texas, and, therefore, it is a war measure, and expressly so stated in the Act itself, towit: that it was to last during the war and pass out of existence at the termination of that war. Second, that it is not a regulatory Act but one drastic in its action and purpose with reference to prohibiting the sale, shipment into the alleged zone, and use of intoxicating liquors by the military forces of the United States. Eliminating the military phase of it and its correlated connection, this law would have no standing in court for any other purpose. I, therefore, concur with Judge Morrow in the statement that the Legislature has no authority, express or implied, to enact the statute under consideration as a war measure, but I can not concur with him in his holding that the Act may be used as a police regulation. Police power of the State does not pertain to nor include war measures or the control in any way of the army and military matters of the United States. That belongs exclusively to the Federal government. The control of the army and all military laws and discipline pertaining to regulation and control of the army and its management and maneuvers were delegated to the Federal government by the State in the Federal Constitution. The State of Texas, therefore, has no authority to declare war or enact war measures. If it be used as a part of the police power, then we have in addition to the police power an overriding military law, and that phase of government resorted to when the police power has failed, and thereby it becomes dominant over civil authority. This would be violative of article 1, section 24, of the State Constitution known as the Bill of Rights. It prescribes that "the military shall at all times be subordinate to the civil authority." Instead of the military controlling the police power of the government that power should be superior to the military in State matters as evidenced by this provision of the Constitution. See also State v. Sparks, 27 Tex. 705. That this is a war measure seems to be certain from the wording of the Act, which is shown throughout the entire bill from caption to emergency termination. That my personal views may not be substituted for the statute, quotations will be made from the Act. It is known as House bill No. 9. The caption provides:

"An Act to prevent and prohibit in time of war the sale, barter, or exchange of spirituous, vinous and malt liquors, or medicated bitters capable of producing intoxication, within tenmiles of any fort, arsenal, training camp, cantonment, aviationfield or school where soldiers, sailors, marines or aviators are being quartered, held or trained, or quartered, or where shipsare being built under contract with the government of the UnitedStates, in time of war, in any branch of the army or navy of the United States." There are other matters mentioned in the enacting clause but they all pertain, as does that already quoted, to a state of war.

Section 1 of the Act provides that, "From and after April 15, 1918, it shall be unlawful for any person in time of war betweenthe United States and any other nation or country to sell, barter or exchange any spirituous, vinous or malt liquors, or medicated bitters capable of producing intoxication, within ten miles ofany part of the land or buildings occupied or controlled by the government of the United States," etc.

Section 2 provides, "It shall be unlawful for any person, firm or corporation, in time of war between the United States and anyother country, to ship or transport by or over any common carrier, express, or service car, any spirituous, vinous or malt liquors, etc., into the zone or territory within ten miles of any part of the land or buildings occupied or controlled by the United States government or any department thereof," etc.

Section 2a provides: "It shall hereafter be unlawful for any person in time of war between the United States and any foreign country, to sell, barter, or exchange any spirituous, vinous or malt liquors, etc., within ten miles of any place used as a yard or place where ships are being built under contract with the government of the United States."

Section 3 provides: "It shall be unlawful for any person, intime of war between the United States and any other country, to carry, in any manner, any spirituous, vinous or malt liquors, etc., into the zone or territory within ten miles of any part of the land or buildings occupied or controlled by the United States government or any department thereof," etc.

Section 3 excepts out of the provisions the sale of wine for sacramental purposes and alcoholic liquors used as medicine, under circumstances prescribed in the Act.

Section 5 provides a penalty of not less than two nor more than five years for each separate violation of any of these provisions.

Section 6 provides for injunction proceedings.

Section 7 gives preference to cases arising under this Act to other cases on the docket.

Section 8 provides that if any section or part of this Act be held unconstitutional or invalid, such holding shall not affect any other portion of the Act.

Section 9 is the emergency clause, and reads as follows: `Whereas, there are many points in Texas where soldiers, sailors,marines and aviators are being trained for service in the armyand navy of the United States, near which liquor is being sold to the great injury and detriment of the morale and efficiency of said troops, there exists an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days be suspended, and that this Act become effective from and after April 15, 1918, and it is so enacted."

It will be noted from these quotations that the only reason for the enactment of this bill was to prohibit during the war between the United States and Germany the sale of intoxicating liquors in ten-mile zones around forts, camps, arsenals and ship yards to the soldiers within said ten-mile zone. It assigns no other reason and states no other proposition. This is interdicted by the Federal Constitution, for the Federal government has absolute control of the army and military matters to the exclusion of the State. This does not militate against the right of the State of Texas to repel invasion of its territory, but here there is no pretense of an invasion of Texas soil, or that the bill was enacted because of that reason. Every feature of the bill and word of it excludes that idea. The Act, therefore, may be stated in a general way to be a war measure, designed to control the military department of the United States army and navy and ship yards, and is a prohibition law of the most stringent and drastic form.

Judge Morrow is also correct in his statement that the bill as a war measure is not justified by either express or implied power in the State Constitution, or that might be exercised by the Texas Legislature. This would be placing the military above the civil authorities as well as an invasion of the power conferred upon the Federal government. It would be an attempted resumption of that delegated authority. As a general proposition it is here stated as a safe rule that no implied power exists unless it is preceded by or bottomed upon an express grant of authority. In this instance there was not only no express or implied authority for the enactment of this bill, but Texas by her deliberate act conferred that power upon the Federal government. This excludes State authority to declare war or to enact war measures. A discussion of that subject would be here without any particular profit. That we are engaged in a great war is evidenced by the current history of the times, and this shows practically a war of world-wide proportions in which the government of the United States is taking a bold foremost position and entering into it with the strongest hand possible. The direction of these affairs has been confided to the Federal government with the President as commander in chief of the armies, and it is not the province of Texas to undertake to direct war measures. Military laws, therefore, belong to the Federal and not the State government. As before stated, this Act can not be justified as a war measure, and that being its only purpose, it is illegal and void.

The application for the writ of habeas corpus is dismissed and denied in Judge Morrow's opinion because, as stated, applicant failed to show as a fact that this as a police measure has deprived him of any right, and this statement is supported by citing authorities dealing with the question of restricted saloon districts in municipal corporations. Quite a number of these cases have been decided by this court and civil courts of Texas to the effect that municipal corporations may be endowed with power by legislative Act to create what is called "restrictive saloon districts" within the domain or territory covered by the respective charters. The writer does not believe these cases are in point. In all such charters, and they practically cover the cities of Texas, it will be noted that power was granted to pass ordinances restricting the sale of intoxicants within the corporate limits of the municipal boundaries to certain districts or portions of the territory of said municipality. That was but a regulation specified in the law itself and went with and was a part of the charter. This was justified by article 11, section 5, of the State Constitution. But in all of those laws and in all of those cases the proposition is asserted and supported that, first, there was a legal right to sell in the territory; second, the municipality was clothed with authority to select the limits in which it should be sold for better regulation and control. This bill has none of the features of regulation as specified in those cases. The law in this instance is a drastic prohibitory enactment. It nowhere authorizes the sale within the territory in or outside of a restricted district, but it bars all saloons and excludes every character of dealing with intoxicants inside of the territory mentioned, the ten-mile zone. This is totally unlike the matter discussed with reference to municipality of city charters and their authority to regulate. I can not, therefore, agree that this is a regulatory Act, or that it was incumbent upon the applicant to show that as a matter of fact the zone law was such restricted district. The statute makes it absolutely prohibitory and leaves no territory where the sale could be made. The applicant could not show facts that would bring him within the regulatory acts found in the city charters and discussed by the courts in the many opinions cited by Judge Morrow because not authorized by the terms of the Act. A broad distinction is to be observed between the regulatory acts discussed in the opinions cited by Judge Morrow with reference to city charters and restricted saloon districts and absolute prohibitory law covering all the territory with no authority to sell as found in this Act.

I have not had time since the opinion was written to go at length into these matters, and, therefore, merely state what I have stated hurriedly and not concisely but rather crudely in support of the two propositions announced in the beginning of the dissenting opinion. I, therefore, conclude that this was intended to operate as a military law or statute pertaining and confined to the war as a measure and the surrounding forts, training camps, aviation schools, and ship yards, and it was enacted for no other purpose except as a drastic and stringent prohibitory law with reference to intoxicants in that connection. I also agree with Judge Morrow, as I understand his opinion, that had this been a local option law there could not have been any restricted saloon districts within the territory mentioned. That would be a correct conclusion, yet this Act is more drastic than the local option law and consequently decidedly more prohibitory in its provisions. The same territory covered by the local option law would exclude the zone law. Of this there seems to be no diversity of opinion, at least there ought not to be. I also conclude that the measure is a drastic prohibitory law and enacted under the guise of a war measure to prevent the sale, exchange and shipment into the territory of intoxicants, and that it is a clear invasion of our constitutional provision with reference to local option laws, and intended to operate outside of and superior to that constitutional section.

I, therefore, respectfully submit that the applicant ought to have been discharged from custody.