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? Wehave 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 Chairmanof the Texas Liquor Control Board, I amwriting to request your opinion, as Attorney General of Texas, onthe 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 bymeans of the process of distillation, or any liquor composed 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 humanconsumption onthe premises where sold~'. "It will be noted that the necessarily implied effect of this definition of the open saloon is to provide that only saloons licensed to sell whiskey shall be included in the definition, andthat saloons not licensed to sell whiskey but only licensed to sell intoxicating liquors other than Whiskey shall not be regarded as open saloons and, therefore, shall not be subject to the regulations andHonorable W.D. Bradfield, Page 2 (o-1706) inhibitions applicable by law to open saloons. As, of course, you are aware, Section 20of Article 16 of the Constitution of Texas, adopted by the people at a special election onAugust 211,1535, provides in its first sentence that: ‘The open saloon shall be and is hereby prohioited~. TheLegislature sha.11 have the power and it shall be its duty to define the term “open saloon’ Iand enact laws against such. ’ Then, the next paragraph of the constitutional 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, andtransportation of intoxicating liquors.’ In view of the fact that for manyyears prior to the adoption of statewide prohibition by constitutional amendmenti..n1919, large numbers of the licensed saloons operating in Texas were wine andbeer saloons not licensed to sell distilled liquors, it has been suggested, with what I regard as unanswerable force, that the definition of the open saloon, which effectually declares that wine andbeer saloons are not onen saloons is unreasonable-upon its face;.and is,therefore, void,

“Believing that it is highly important that the Texas Liquor Control Board andthe people of Texas should be authoritatively advised as to the validity of this statute, I amwriting to request of you, as the constitutional legal adviser of the State and of the Texas Liquor Control Board and of its Chairmanand 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 uponthe 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 deemedto 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 uponthe more literal terms of the statute would lead to anabsurd result anddefeat the purpose of the law, the courts will unhesitatingly reject the latter and adoptthe former construction. Butwhere a statute is plain and

unambiguous in its terms and, therefore, construes tiself, the courts will not strj.ke it downmcr~CIy because it appears to be unreasonable in it.s provisions, or that 1-t was conceived Jonunwisdom; for, if the courts were actuated merely~by cci:lsiderations of expediency in such cases, and should assumeto an!Ml onthat 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 8Cdbe boundby the Constitutiou 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 aReplzblicai? form of goverrment"; slndArticle II of the Constitution, which provides:

"Section 1. Thepowers 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‘reLegislative to one; those which are Executive to another, andthose which are Judicial to another; andno perSOr1, or.collectiorr of persons, being of one of these departments, sh~all exercise anypower properly attached to tither of the others, except in the instances herein expresslzy permitted." TheSupremeCourt of this State, throughout a judicial history of one hundred years, has steadfastly adhered to those constitutional barriers in passing uponand construing the Acts of the Lc+slaSur;e. While the Court has, at times, struck downalegislative Act because it was unintelligible in its terms, and, therefore, unenforceable atiaw and, ic mazyI.nstances, has declared void legislative enactments because they were passed finviolation of constitutional. provisions, weknowof no case where that Court has annulled a statute onthe single ground that it may have been considered to be an unreasonable or unwise t?tXICtment. Whathas been said is well illustrated in the: following text from 39Tex. Jur., Sec. 89, at page 162, wherein it is stated:

"Whenstatutes are upfor 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, andto give relief from unjust and unwise legislation,llonorable W.D. Bradfield, Image 4 

### (o-1708) although a court may, of course, direct the attention 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 madeby the Legislature, - to determine with as muchdefiniteness and certainty as maybe 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 an-text, to modify, repeal, or ised, re-wrim??tute.--GT (as seen above, Sec. 

### 88) even to 'construe'- an unambiguous act to conform to its ownnotions 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 maybe necessary to effectuate the legislative intent." (Italics ours.) Thestatute 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) Theterm 'open saloon', as used in this Act, meansany place where anyalcoholic beverage whatever, manufactured in whole or in partby meansof the process of distillation, or anyliquor composed or compoundedin part of distilled spirits, is sold or offered for sale for beverage purposes bythe drink or in broken or unsealed containers, or any place where any such liquors are sold or offered for sale for humanconsumption onthe 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 wasforbidden by some constitutional provision, it cannot be held to be void because it maybe thought to be unreasonable in its definition of the term "open saloon'.

Sofar 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 NewInternational Dictionary gives as one, and the commonlyaccepted, meaning of the word 'saloon' asbeing."a shop where intoxicating liquors are sold anddrun?x, commonlywithout meals". But that wordhas awider signification, as is illustrated by the variou~s definitions given to it in Bouvier's LawDictionary, which reads:Honorable W. D. Bradfield, Page 5, (O-1708)

"Saloon. Aplace of refreshment. Anapsrtmentfor a specified public use. In commonparlance, the word is used to designate a place where intoxicating liquors are!sold, andthis restri.cted meaning maybc given to saloons, where the context or other circumstances require it; but it does not necessarily import a place where liquors are sold. Thew.ordhas amuchbroader meaning than dramshop. Toconstitute a saloon it is not necc'ssary that ,ardcnt spirits should be offered for sale andthat it should be abusiness requiring a license under the revenue laws of the State." Various authorities are cited in the text which are omitted in the quotation.

Oneof the cases cited byMr. Bouvier is the Texas case of Early vs. State, 23 Tex. App. 364, 5 S.W. 122, from which wequote:

"Now, does the word 'saloon' necessarily imply that it is, or is the word convertible with the expression, Iahouse for retailing spirituous liquors?' Wethink not, andthe authorities in effect have declared 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 defendant 'did unlawfully play at a gamewith cards in a house for retailing spirituous liquors'. This charge is not supported by the evidence before us. It waslot proved that the house in uhl.ch defendant played cards wasahouse for retailing spirituous liquors. The proof wasthat he played in a 'saloon'. A 'saloon' does not necessarily mean Iahouse for retailing spiri.tuous liquors'. Early's case', 23Tex. App. 364, 5 S.W. Rep. 122.

. . Because a conviction is unwarranted by the evidence the judgment is reversed, andthe cause remanded." Andin the case of McMurtryvs. State, 38 Cr. App. 521, 43 S.W. 1010, 1012, the couvt said: "There is noallegation in terms charging that the roomwhere the gameof cards wasplayed wasat a place for retailing spiritous liquors, unless it be conceded that the use of the language '8ud Benson's Saloon' is tantamount to anal.l.cgation that i.t 17~3s a place for retailing spirituous liquors. Theword 'saloon' has avaried meaning. It m3-rYap

applied to a olace Xor ret:aS.linrc spiritu-. . ’ Honorable W.D. Bradfield, Page 

### 6, (O-1708)

ous liquors, or to manyother kinds of places. Wedo not believe that the allegation in this respect is sufficient." Thedecisions from which the above quotations are taken are early cases, but, while wehave investigated, wedo not find,that these cases have been modified or over-ruled by any subsequent decisions by our Coupt of Criminal Appeals.

Hence, it appears that the word 'saloon' is a proper one for alegislative definition. Especially do wethink 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 ajudge to define the meaning of aterm which has more than one meaning, andwhich mustbe defined to makethe law certain, for onejudge might construe the word ouewayandanother 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 onthe fourth Saturday in August, 1933, the qualified voters of the State adopted an amendmentto Section 20 of Article XVIof the Constitution which had the effect to authorize in certain localities of the State the manufacture and sale of malt andvinous liquors not to exceed a definite alcoholic content, and also to authorize in other localities only upona local option vote of the people in the manufacture and sale of such liquors. That amendmentandthe legl.slative Acts passed in pursuance thereto were in effect August 24, 11.935,when another amendmentto Section 20of Article XVIof the Constg tution wasadopted, which is generally referred to as the amendmentto the Constitution repealin&7statewide 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, andwhich'was passed pursuant to said amendment, is so unreasonable as to render the statute void.

However, there is amore demanding reason whythe Attorney General should not so hold. All the words andproVision:5 of the said amendmentto the Constitution have been carefully consi.dcred in the study of the questions which you have propounded, but assuming that they are equally well knownto you, andgenerally understood, weh,avegivenHonorable W..D. Dradfield, Page 

### 7 (0.~1708)

special.’ attention to -;hose provisions of the amendment which are especially applicable to this discussion, and which wequote:

“Section 1i That Article XVIof the Cotiotitut ion of Texas be amendedby striking out Section 20ato Sctition 2Oe, both inclusive. and substituting in lieu thereof the follo\fine:

“Article X%1, Section 20 (a). Theopen saloon shall be and is hereby prohibited. The Legislature shall have pow&, and it shall be its duty to define the term .*opensaloon’ and enact laws against such.

“Subject to the’ foregoing, the Legisl.ature shall have the power to regulate the manufacture,, sale, possessl,on andtra.nsportatlon of intoxicating liquoro, including the power to establish a State monopoly bnthe sale of distilled liquors
, , ‘1 While the Constitution, like any other written document, in subject to judiciul construction, whens&h conotruction is coll~d for
, yet in passing upona constitutional provision I;liccourts 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’13 of a given section .of the Constitution 00to require the courta to h6J.d that ,ouch a provision ia unintelligible, and, Lhcrcfore, void.

Thelanguage of‘Subsection (a) of Section 20of: Article XVIof this Amendmentto the Conatitutlon is plain andnot subject to judicial construction. The command thorc given ta the Legislnfurc to define the term “open saloon” 3.uas mucha part ol the Constitution ,natho &hcr provisions of that amondmcnt

. Thercforo, it is not the function of the courts or of the Attorney Gcncrbl to speculate upon the Pcaoonu or motive which mnyhave actuated the LcgLrjlnturc in eubmlttin~: thi:, nmcndmcntto the vote of ‘the pcoplc in the language contained in the quoted Scction, saloon” The Ic~;lr~lr~turo could ~IRVC defined the term “open in the joLnt rcaolution which nubmi.ttod this Amendmcnt to the gc0p1.c~ Th,cfdid not do so, and II;wasthe province of the votcro of the State, if thoy ARM fit hoto do, to rcjcct the nmcndmentonthat or n,nyothc:r ground ,thnt mayhave nctuatcd themin castlnfi thc1.r votes. The pcoplc, olonc, have power in ouch CRBCO,andtheir act in adopting the Coti:;titu~Ll.ou or ansmendmcntto the Constitution is the suprcmc law of the land, sevc only where it mayconflict with the Conatituti,on OPthe United States, and is binding al;l.kc on all. departments of the State.Honorable W. D. Bradfield, Page

### 8 (O-1708)

In $4Tex. Jur., at page 421, it is said:

“The pronouncements of the Constitution are imperious, supreme andparamount; and -.

----- pie wh-ich$??-in~~~ct~ with the Constitution is void.” (Italics ours.) Theabove quotation from Texas Jurisprudence is but an epi.tome of the decisions of our appellate courts, both clvi~l and criminal, onthis subject.

Anenlightened iinderstanding of, and implicit obedience to the plain mardates of the Coastitution, including all amendmentsthereto, are essential to the preservation of the American form of government. Hence, it must, until changed in the constitutional way, override varying popular opinions and contrary individual desires. In the rather recent case of Travelers Insurance Companyvs. Marshall, 

### 124Tex. 

### 445,76S.W. (2d) 

### 1007, Cureton, C-J., speaking for the SupremeCourt, gave judicial utterance to most of whathas here been said. And first amongthe manyauthorities cited byJudge Cureton in one part of the opinion in t.hat case is that of Stockton vs. Montgomery, Dallam’s Decisions, p. 

### 473,which was rsnd,ered in the ear1.ydays of the Repuhl.fc, andfrom which webriefly quote:

“What is the consistution? It is the basis onr;hich the government res.ts, the authority for all. law; and is the commission under which the legislature, the executive andjudiciary act, It is permanent andn.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.crobbery and.treason, it continues like the Himmalehor .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, 

### 68Tex. 

### 323., 4S.W. 

### 607,Stayton, J., speaking for the SupremeCourt said:

“It is urged that the acts of August 

### 7, 1876,April 22, 

### 1879,andApril 2, 

### 1883,are unconstit utional, Inthat they are retroactiveHonorable \:T.D. Bradfield, Page 9 

### (O-1708)

in character, and create demandswhere none before existed. That the Constitution commandedthe Legislature to pass these laws, is a sufficient answer to this claim. Const. art. 

### 16,Sec. 

### 26.Whatthe Constitution commands, cannot be unconstitutional." - _- - saloon", TheLegislature,' in defining the words "open

acted in obedience to the commandof the people as expressed by their vote in adopting the foregoing constitutional amendment, andthe Attorney General has noauthority 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