April 30, 1957

Honorable L. Dewitt Hale, Chairman LiquorRegulation Committee House of Representatives Austin, Texas OpinionNo. W-104
Re: Constltutlonalltyof House Bill 487, prohibiting the sale of intoxicating liquors, beer or wines in grocery stores or food Dear Wr. Hale: markets.

You have asked the opinion of this office as to the constitutionalityof House Bill 487, 55th Legislature, 1957. This Bill is to add a Section numbered li'b to Article I, Chapter 467, Acts of them Legislature, Second Called Session, 1935. In examining the statutewhich the bill is to amend, we find no Chapter 467 of the 45th Legislature, Second Called Session 1935. We assume you refer to Chapter 467, Acts of the 44th Legislature, Second Called Session, 1935,which is the Texas Liquor Control Act, and that the discrepancywill be corrected.

We would also note that paragraph (2)of Section li'b which Is to be added to the Liquor Control Act provides a penalty for violation of paragraph (1) of Section 17b. This penalty is a fine of not less than $250 nor more than $1000 or imprisonmentof not less than 30 days normy;etF;n six months, or both such fine and imprisonment. does not providewhether the Imprisonment is to be in the jail or the state penitentiary. We assume that this oversightwill also be corrected.

The pertinentportion of the Act reads as follows: "Section17b. (1) No person shall sell intoxlcatlng liquo$,beer or wine in a grocery store or food market.. - ‘.IHonorable L. Dewitt Hale, page 2 (WW-104)

Under the Texas Constitution, the Legislaturehas the power to regulate the sale of intoxicating liquors, which power is expressed in the following language, in Article XVI, Section 20, (a):

"Sec. 20 (a) The open saloon shallbe and Is hereby prohibited. The Legislature shall have the Dower, and It shall be Its duty to define the term 'open saloon' and enact laws against such. "Subjectto the foregoing, the Legislature shall have the power to regulate the manufacture, sale, possessionand transportationof intoxicatingliquors, including the power to establisha State Monopoly on the sale of distilled liquors." Although this power to regulate the sale of intoxleating liquors does not include the power to enact statewide prohibition,the sale of Intoxicating liquormay be prohibited or permittedunder such conditionsand in such places as the Legislature shall deem necessary. Ex ParteBell, 24 Tex. Cr. R., 428; 6 S.W. 197 (1887);Bx Parte Peede, 75 Tex. Cr. R. 247, 170 S.W. 749 (1914);Edgar v. McDonald, 106 S.W. 1135, (Tex.Civ. App. 1908).

The first question Involved iswhether the statute restricting the sale of intoxicatingliquors,beer and wine in a grocery store or food market is a reasonable regulation of the sale of alcoholicbeverages. The test in determining whether a statute is discriminatoryagainst a certain class, in this case, grocery stores, Is whether there Is any reasonable basis for the classification. San AntonioRetail Grocers v. Lafferty Texo 297 S.W. 2d 813 (1957);Clark v. Finley 93 Tei.171, 54m'343 (1899);Jerardv. Smith, 52 S.W.2dg347 (Tex.Civ.App.1932, error ref'd). There are no Texas cases directly in point on the determinationto be made here, but the Courts of other jurisdictionsgive us some authority on which we may make a determination.

The law applicable to this determination,as above

applicable determination, stated, clearly Cigar-Whalen stated, is more clearly stated in United Cigar-Whalen Stores Corporation v. Delaware Lfquop Commission, 2 Terry 74, 15 A. Corporation Delaware Commission,

(1940),wherein statute prohibited 2d 442 (1940),wherein the statute prohibited the sale of intoxicating liquor in a 'grocerystore, delicatessen shop intoxicating 'grocery delicatessen or cigar store":Honorable L. Dewitt Hale, page 3 (WW-104)

"As to the second question, it is contended that the Legislature of this State, In t~he act in question,has adopted an arbitrary and unreasonable classificationof persons prohibited from the sale or dispensingof alcoholic liquors, and that thus this appellant Is deprived of those equal rights enjoyedby persons in other occupations.
"Now the control and supervisionof the traffic in alcoholicOP intoxicating liquors comes peculiarlywfthfn the general police powers of a State, and the Legislaturehas plenary power to require occupational licensesbefore anyone is qualified to deal in such liquor. When the Leglslature indulges in a classificationof persons in connectionwith any occupatfonal license, such legislative classification 1s entitled to a very high measure of judfclal support. The classiflcation must be clearly arbitrary and capricious before a court can interferewith a legislative judgment. If any state of facts can reasonably be conceivedas sustafning the classification, the existence of such facts must be assumed as the basis of the legislativeaction. When the legislatfve classification is clearly arbitrary and capricious and based on no tangible or substantial distinction, thelab but not untfl then, can the courts interfere, The reasonablenessof prohibitingthe sale of alcoholfc liquors 

### in grocery stores has not been considered in the State of Texas,but fn all the other stateswherein this classfficationhas been considered, the classification has been upheld as a reasonable classificationand a valid

sioners, 7 N.J.L. 4.96,57 Atl. 153 (1904);Tlttsworthv. Okin, ii8-FEFla.

454, 159 So. 779 (1935)pwhere similar statuteswere also involved.

In the Qreat Atlantic & PacificTea Company case, supra, the statute provided that no retail liquor license should be granted "toany fllrm,corporationor personwhoseHonorable L. Dewitt Hale, page 4 (WW-104)

principalbusiness is the sale at retail of groceries and/or meat products." The question of the reasonablenessof the classificationmade in this ordlnanaewas clearly presented to the Supreme Court of Illinois. That aourt upheld the statute.Upon these out-of-state caseswe advise you that House Bill 487 Is not based upon an unreasonable, arbitrary or capricious classification. The Texas courts may not follow these cases, but until a Texas court passes on the questionwe feel that they are the law.

We do not think the case of San AntonioRetail Grocers v. Lafferty supra, to be controllingon the determination we are call&d uwon to make. exceot as the law In that case also applies to-the present determination. The court in the Lafferty case concluded that the operation of the act was discriminatory,and stated further:

I,

. . .but the mere fact that the act discriminates against grocery stores does not render it unconstitutional. Before we may strike It down It must appear that there is no reasonable relationshipbetween the class created and the purposes tobe accomplished or the evils to be prevented." (CitingAutnority) The second questionwhich arises concerning the constitutionalityof this bill is that of its certainty and definitenessunder Article I, Section 10, of the Texas Constitution and Article 6 of Vernon's Penal Code. There is no question that the bill intends to define an offense or that the offense is the selling of intoxicating liquors,beer or wines in a grocery store or food market. The question iswhether the term 'grocerystore or food market have a definite meaning. Article 7,V.P.C., provides that penal statutes "shallbe construedaccording to the plain Import of the language in which it Is written." Article 8, V.P.C., provides that all words used in the Penal Code exceptwhere specially defined are to be taken and construed in the sense inwhich they are understood in common language, taking into considerationthe context and subjectmatter relative to which they are employed.

In at least one case in the State of Texas, the Court of CriminalAppeals had no difficultywith the use of the word 'grocer" in the "Sunday law" (Art. 286,V.P.C.) of the State of Texas. In Hanks v. State, 50 Tex..Cr.R. 577, 99 S.W. 1011, (1907),the court held that a farmerwho soldHonorable L. DewittHale, page-:5(WW-91C4)i.

wine and ciderwhich he had..,produced on his own farm, and which was kept for sale ~athie house:was:.not a "grocer" within the meaning c+the Sunday law..,, Thus, the courts of Texashave, "grocer." at leastnegatively, defined the term

Furthermore, these termshave been judicially defined in ,otherjurisd~ia,tions. Goldstinev. State, 230 Ind. 343; 103 N. E. 2d 438 (1952) ("grocerystore"r; PrivateA. S. Realty' Corp. ,v.Julian, 214 App. Div. 628, 212 N.Y.S. 4 t ) t"grocery") P Shifrin, 198 Misc. 348, lOl'~.Y~~%d 613 (1950) ["~~~d'~t~res").

How'ever,the term "foodmarket" is not in general use and has 'nowell define,d'meaning.We think it too vague and advise you that without further definition itwould not be,constitutional; ~Groceriesand foods are sold under such; a variety of circumstancesthat therewould be great doubt in border line cases. Many city department storeshave grocery departmentswhile drug storeshandle many food items. There are a few old time general storesremaining in rural areas, but the trend in suburban areas Is towards one comprehensive self-servicetype storewhich se~e~ms to sell anythingwhich can be packaged. Traditionally in Texas the word "market"sometimesrefers to an area set. apart,for farmerswho sell their produce. Any attempt to regulate sales In an area would conflictwith the local optton laws.

Therefore, it is our conclusion that House,Blll 487, 55th Legislature, 1957, is too vague and indefinite for lack of specific definition of the term tlgrocery store or food market.' It is our opinion that this renders this Bill unconstitutionalunder the terms of Article I, Section 10, of the Texas Constitution.

SUMMARY

House Bill 487, 55th Legislature, 1957, prohibitingthe sale of Intoxicating liquor,beer, or wines in a groceryHonorable L. Dewitt Hale, page 6 (W-104)

store or tutlonal 10, Texas conatltution.

food market ia unconatlunder Article I, Section

._. .

Yours very truly, WILLw1Ls0pl Attorney Qeneral of Texas

APPROVED: OPIHIOIf

COMMITTEE

: J. C. Davis, Jr., Chairman Leonard Pasamore John Reeves J. L. Smith