Untitled Texas Attorney General Opinion ( 1939 )

Honorable W. D. Bradfield
Chairman
Texas Liquor Control Board
Austin, Texas
Dear Sir: Opinion No. O-1.708
Rc: Is the def'inition of the words
"open saloon", as contained in
Article 666-3 of the Penal Code
void because unreasonable?
We have your letter of November 16, 1939, in which
gourequest the opinion of the Attorney General as to the
validity of the above captioned statute on account. of the
definition which is therein given by the Legislature to the
words "open saloon".
On account of the importance of this subject, we
quote your letter in full, which reads as follows:
"As Chairman of the Texas Liquor Control
Board, I am writing to request your opinion, as
Attorney General of Texas, on the validity of
that part of the Texas Liquor Control Act which
defines the term 'open saloon', as used in the
Act, as meaning: 'any place where any intoxicants
whatever, manufactured in whole or in part by means
of the process of distillation, or any liquor com-
posed or compounded in part of distilled spirits,
is sold nr offered for sale for beverage purposes
by the drink or in broken or unsealed containers,or
any place where any such liquors are sold or offered
for sale for human consumption on the premises where
sold~'.
"It will be noted that the necessarily im-
plied effect of this definition of the open saloon
is to provide that only saloons licensed to sell
whiskey shall be included in the definition, and that
saloons not licensed to sell whiskey but only li-
censed to sell intoxicating liquors other than Whis-
key shall not be regarded as open saloons and, there-
fore, shall not be subject to the regulations and
Honorable W. D. Bradf ield, Page 2 (o-1706)
inhibitions applicable by law to open saloons. As,
of course , you are aware, Section 20 of Article 16
of the Constitution of Texas, adopted by the people
at a special election on August 211, 1535, provides
in its first sentence that: ‘The open saloon shall
be and is hereby prohioited~. The Legislature sha.11
have the power and it shall be its duty to define
the term “open saloon’ I and enact laws against
such. ’ Then, the next paragraph of the constitu-
t ional amendment, adopted at this same election,
provides that only subject to this limitation shall
the Legislature of Texas ‘have the pcwer to regulate
the manufacture, sale, possession, and transportation
of intoxicating liquors.’ In view of the fact that
for many years prior to the adoption of statewide
prohibition by constitutional amendment i..n 1919,
large numbers of the licensed saloons operating in
Texas were wine and beer saloons not licensed to
sell distilled liquors, it has been suggested, with
what I regard as unanswerable force, that the defi-
nition of the open saloon, which effectually de-
clares that wine and beer saloons are not onen sa-
loons is unreasonable-upon its face;.and is,therefore,
void,
“Believing that it is highly important
that the Texas Liquor Control Board and the people
of Texas should be authoritatively advised as to
the validity of this statute, I am writing to re-
quest of you, as the constitutional legal adviser
of the State and of the Texas Liquor Control Board
and of its Chairman and officers, your opinion, first,
as to the validity of this statute; and, second, in
case you find the present statutory definition
of the open saloon invalid under the Constitution,
your legal opinion is invited as to the effect of
such unconstitutionality and invalidity of the
statute referred to upon the remainder of the Texas
Liquor Contra1 Act .'I
It is believed that the Attorney General should
never advise the law enforcement officers of the State
that a criminal atatute, or any section of a criminal
statute, is void merely on the ground that it is deemed to
be unreasonable in its terms, or in its definition of terms.
In a cast wh:re a statute is ambiguous, and is
subject to two constructions, one of which would give to
the statute a~reasonable result and effectuate the purpose
of the law, and another construction, though it should be
based upon the more literal terms of the statute would
lead to an absurd result and defeat the purpose of the law,
the courts will unhesitatingly reject the latter and adopt
the former construction. But where a statute is plain and
unambiguous in its terms and, therefore, construes tiself,
the courts will not strj.ke it down mcr~CIy because it
appears to be unreasonable in it.s provisions, or that 1-t
was conceived Jon unwisdom; for, if the courts were actuated
merely~ by cci:lsiderations of expediency in such cases, and
should assume to an!Ml on that ground, alone, it would be
a substitution of the judicial for the legislative mind.
Moreover, I.:? passing upon the Acts of the Legisla~ture, i.3~
courts as well as the executive departmects of the State
must yield willing allegiance to 8Cd be bound by the Con-
stitutiou in ail of its parts, and especially, in this
connection, to t!lat declaration in the Bill. of Rights
wherein it is provided that, "The faith of the people of
Texas stands pledged to the Freservati.on of a Replzblicai?
form of goverrment"; slnd Article II of the Constitution,
which provides:
"Section 1. The powers of the Government
of the State of Texas shall te divided into
three distinct departments, each of which shall
be confided to a separate body of magistracy,
to-wit: Those which a‘re Legislative to one; those
which are Executive to another, and those which
are Judicial to another; and no perSOr1, or.col-
lectiorr of persons, being of one of these depart-
ments, sh~all exercise any power properly attached
to tither of the others, except in the instances
herein expresslzy permitted."
The Supreme Court of this State, throughout a
judicial history of one hundred years, has steadfastly adher-
ed to those constitutional barriers in passing upon and con-
struing the Acts of the Lc+slaSur;e. While the Court has,
at times, struck down a legislative Act because it was unin-
telligible in its terms, and, therefore, unenforceable atiaw
and, ic mazy I.nstances, has declared void legislative en-
actments because they were passed fin violation of consti-
tutional. provisions, we know of no case where that Court
has annulled a statute on the single ground that it may
have been considered to be an unreasonable or unwise t?tXICt-
ment.
What has been said is well illustrated in the:
following text from 39 Tex. Jur., Sec. 89, at page 162, where-
in it is stated:
"When statutes are up for calstruction, as
often remarked, it is not within the judicial
provi.nce to indulge in acts of legislation. It
is for the Legislature, not the courts, to remedy
defects or supply deficiencies in laws, and to
give relief from unjust and unwise legislation,
llonorable W. D. Bradfield, Image4 (o-1708)
although a court may, of course, direct the at-
tention of the law-makers to a defect or omission
in a statute.
"The proper function of a court in this
connection is to declare and enforce the law as
made by the Legislature, - to determine with as
much definiteness and certainty as may be what
the law is as it stands, rather than to announce
what the law should be or to speculate as.-- to wh2
it is as it is. Accordingly, ---a--dourt is not author-
--Ti%r
ised, an-text, to modify, repeal, or
re-wrim??tute.--GT (as seen above, Sec. 88)
even to 'construe'- an unambiguous act to conform
to its own notions--- of ;justice, policY,p~~323&
s--- wisdom,--'* So, however desirable it might seem
in certain cases, a court is not privileged to
interpolate words, to add or eliminate provisions,
or to enlarge, extend or restrict the scope of a
law, except as this may be necessary to effectu-
ate the legislative intent." (Italics ours.)
The statute to which you direct the attention of
the Attorney General is Subdivision (a) of Article 666-3
of the Texas Liquor Control Act, which reads as follows:
"(a) The term 'open saloon', as used in
this Act, means any place where any alcoholic
beverage whatever, manufactured in whole or in
partby means of the process of distillation,
or any liquor composed or compounded in part of
distilled spirits, is sold or offered for sale
for beverage purposes by the drink or in broken
or unsealed containers, or any place where any
such liquors are sold or offered for sale for
human consumption on the premises where sold."
It is believed that this statute is plain and
unambiguous, and is not susceptibe to judicial construction
and, therefore, unless its enactment was forbidden by some
constitutional provision, it cannot be held to be void
because it may be thought to be unreasonable in its defini-
tion of the term "open saloon'.
So far as our investigation has gone, that term
has never been otherwise defined in any of the Legislative
Acts dealing with the subject of intoxicating liquors.
Webster's New International Dictionary gives as one, and
the commonly accepted, meaning of the word 'saloon' asbe-
ing."a shop where intoxicating liquors are sold and drun?x,
commonly without meals". But that word has a wider signifi-
cation, as is illustrated by the variou~s definitions given
to it in Bouvier's Law Dictionary, which reads:
Honorable W. D. Bradfield, Page 5, (O-1708)
"Saloon. A place of refreshment. An apsrt-
ment for a specified public use. In common par-
lance, the word is used to designate a place where
intoxicating liquors are! sold, and this restri.cted
meaning may bc given to saloons, where the context
or other circumstances require it; but it does
not necessarily import a place where liquors are
sold. The w.ord has a much broader meaning than
dram shop. To constitute a saloon it is not necc's-
sary that ,ardcnt spirits should be offered for
sale and that it should be a business requiring a
license under the revenue laws of the State."
Various authorities are cited in the text which
are omitted in the quotation.
One of the cases cited by Mr. Bouvier is the
Texas case of Early vs. State, 23 Tex. App. 364, 5 S.W.
122, from which we quote:
"Now, does the word 'saloon' necessarily im-
ply that it is, or is the word convertible with the
expression, Ia house for retailing spirituous liquors?'
We think not, and the authorities in effect have de-
clared otherwise in this state."
In the case of Springfield vs. State, 13 S.W. 752,
the court said:
"It is charged in the Indictment that defend-
ant 'did unlawfully play at a game with cards in a
house for retailing spirituous liquors'. This charge
is not supported by the evidence before us. It was lot
proved that the house in uhl.ch defendant played cards
was a house for retailing spirituous liquors. The
proof was that he played in a 'saloon'. A 'saloon'
does not necessarily mean Ia house for retailing
spiri.tuous liquors'. Early's case', 23 Tex. App. 364,
5 S.W. Rep. 122. . . Because a conviction is un-
warranted by the evidence the judgment is reversed,
and the cause remanded."
And in the case of McMurtry vs. State, 38 Cr.
App. 521, 43 S.W. 1010, 1012, the couvt said:
"There is no allegation in terms charging
that the room where the game of cards was played
was at a place for retailing spiritous liquors,
unless it be conceded that the use of the language
'8ud Benson's Saloon' is tantamount to an al.l.cga-
tion that i.t 17~3s a place for retailing spirituous
liquors. The word 'saloon' has a varied meaning.
It m3-r Yapapplied to a olace Xor ret:aS.linrc spiritu-
. . ’ Honorable W. D. Bradfield, Page 6, (O-1708)
ous liquors, or to many other kinds of places.
We do not believe that the allegation in this
respect is sufficient."
The decisions from which the above quotations
are taken are early cases, but, while we have investi-
gated, we do not find,that these cases have been modified
or over-ruled by any subsequen t decisions by our Coupt
of Criminal Appeals.
Hence, it appears that the word 'saloon' is a
proper one for a legislative definition. Especially do
we think this is true in a statute which creates a penal.
offense. It would create an uncertainty in th? law, in a
case of this ki.nd, to leave it to a judge to define the
meaning of a term which has more than one meaning, and which
must be defined to make the law certain, for one judge
might construe the word oue way and another judge in a
different way, and it is to avoid such uncertainties in the
enforcement of the law, and especially the criminal laws of
the State, that it is required that a statute which creates
a criminal offense must define the offense in plain and
intelligible terms.
At an election held on the fourth Saturday in
August, 1933, the qualified voters of the State adopted an
amendment to Section 20 of Article XVI of the Constitution
which had the effect to authorize in certain localities
of the State the manufacture and sale of malt and vinous
liquors not to exceed a definite alcoholic content, and
also to authorize in other localities only upon a local
option vote of the people in the manufacture and sale of
such liquors. That amendment and the legl.slative Acts pass-
ed in pursuance thereto were in effect August 24, 11.935, when
another amendment to Section 20 of Article XVI of the Constg
tution was adopted, which is generally referred to as the
amendment to the Constitution repealin& 7 statewide prohibitfon.
In consideration of the status then existing in
the State respecting the manufacture and sale of beer and
wine, the Attorney General would hesitate to hold, if he
had the authori.ty SO to do, that the definition which the
Legislature has given to the words "open saloon" in the
Act creating the Texas Liquor Control Board, and which'was
passed pursuant to said amendment, is so unreasonable as to
render the statute void.
However, there is a more demanding reason why the
Attorney General should not so hold. All the words and pro-
Vision:5 of the said amendment to the Constitution have been
carefully consi.dcred in the study of the questions which
you have propounded, but assuming that they are equally well
known to you, and generally understood, we h,ave given
Honorable W. .D. Dradfield, Page 7 (0.~1708)
special.’ attention to -;hose provisions of the amendment
which are especially applicable to this discussion, and
which we quote:
“Section 1 i That Article XVI of the Coti-
otitut ion of Texas be amended by striking out
Section 20a to Sctition 2Oe, both inclusive. and
substituting in lieu thereof the follo\fine:
“Article X%1, Section 20 (a). The open
saloon shall be and is hereby prohibited. The
Legislature shall have pow&, and it shall be
its duty to define the term .*open saloon’ and
enact laws against such.
“Subject to the’ foregoing, the Legisl.ature
shall have the power to regulate the manufacture,,
sale, possessl,on and tra.nsportatlon of intoxicat-
ing liquoro, including the power to establish a
State monopoly bn the sale of distilled liquors , , ‘1
While the Constitution, like any other written
document, in subject to judiciul construction, when s&h
conotruction is coll~d for , yet in passing upon a consti-
tutional provision I;lic courts are not warrant&l in exc?.ud-~
In& from thcfr consideration one .section of, the Constitu-
.. tlon in order to empholcnize :‘nother section, unless there
Is such uncertainty in the MOT’13of a given section .of the
Constitution 00 to require the courta to h6J.d that ,ouch a
provision ia unintelligible, and, Lhcrcfore, void.
The language of ‘Subsection (a) of Section 20 of:
Article XVI of this Amendment to the Conatitutlon is plain
and not subject to judicial construction. The command
thorc given ta the Legislnfurc to define the term “open sa-
loon” 3.u as much a part ol the Constitution ,na tho &hcr
provisions of that amondmcnt. Thercforo, it is not the
function of the courts or of the Attorney Gcncrbl to spec-
ulate upon the Pcaoonu or motive which mny have actuated
the LcgLrjlnturc in eubmlttin~: thi:, nmcndmcnt to the vote
of ‘the pcoplc in the language contained in the quoted Scc-
tion, The Ic~;lr~lr~turo could ~IRVCdefined the term “open
saloon” in the joLnt rcaolution which nubmi.ttod this Amend-
mcnt to the gc0p1.c~ Th,cfdid not do so, and II; was the
province of the votcro of the State, if thoy ARMfit ho to
do, to rcjcct the nmcndment on that or n,ny othc:r ground
,thnt may have nctuatcd them in castlnfi thc1.r votes. The
pcoplc, olonc, have power in ouch CRBCO, and their act in
adopting the Coti:;titu~Ll.ou or an smendmcnt to the Constitu-
tion is the suprcmc law of the land, sevc only where it
may conflict with the Conatituti,on OP the United States,
and is binding al;l.kc on all. departments of the State.
Honorable W. D. Bradfield, Page 8 (O-1708)
In $4 Tex. Jur., at page 421, it is said:
“The pronouncements of the Constitution
are imperious, supreme and paramount; -.and
-----
pie wh-ich$??-in~~~ct~ with the Constitution
is void.” (Italics ours.)
The above quotation from Texas Jurisprudence
is but an epi.tome of the decisions of our appellate
courts, both clvi~l and criminal, on this subject.
An enlightened iinderstanding of, and implicit
obedience to the plain mardates of the Coastitution, in-
cluding all amendments thereto, are essential to the
preservation of the American form of government. Hence,
it must, until changed in the constitutional way, over-
ride varying popular opinions and contrary individual
desires.
In the rather recent case of Travelers Insurance
Company vs. Marshall, 124 Tex. 445, 76 S.W. (2d) 1007,
Cureton, C-J., speaking for the Supreme Court, gave judi-
cial utterance to most of what has here been said. And
first among the many authorities cited by Judge Cureton
in one part of the opinion in t.hat case is that of Stock-
ton vs. Montgomery, Dallam’s Decisions, p. 473, which was
rsnd,ered in the ear1.y days of the Repuhl.fc, and from
which we briefly quote:
“What is the consistution? It is the
basis on r;hich the government res.ts, the author-
ity for all. law; and is the commission under
which the legislature, the executive and judiciary
act, It is permanent and n.ot influenced by the
temper of the ti.mes. Whatever the collisions of
opposi.te interests, the virulence of parties and
the conspiraci.cs of corruption, puh1.i.c robbery
and. treason, it continues like the Himmaleh or
.the Andes, amidst and above the storm; the natio!l’s
destiny dependent upon its subsistence, . .‘I
In the case of Cal.dwell. vs. Crockett, 68 Tex. 323.,
4 S.W. 607, Stayton, J., speaking for the Supreme Court said:
“It is urged that the acts of August 7,
1876, April 22, 1879, and April 2, 1883, are
unconstit ut ional, In that they are retroactive
Honorable \:T. D. Bradfield, Page 9 (O-1708)
in character, and create demands where none
before existed. That the Constitution com-
manded the Legislature to pass these laws,
is a sufficient answer to this claim. Const.
art. 16, Sec. 26. What the Constitution com-
mands,- cannot be unconstitutional."
_- -
The Legislature,' in defining the words "open
saloon", acted in obedience to the command of the people
as expressed by their vote in adopting the foregoing
constitutional amendment, and the Attorney General has
no authority to annul that Act.
It becomes unnecessary to answer the second
question which you have propounded in your letter.
Yours very truly
/s/ Gerald C. Mann
Attorney General of Texas
/s/W. F. Moore
First Assistant Attorney,
General
Diet. to
FG.
12-13-39
This Opinion
Considered and
Approved in
Limited
Conference