The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-06-28

Interesting decision on the loo
option or iquor-prohibition lay
Opinion by Judge White, and diSsen
ing opinion by Judge Wilson.
A. ID. Holley VS.. State, and same V
same, 1.-TWO cases. from Wise count,
In pursuance of article XVI (geI
eral provisions) of the constitution
the fifteeth legislature passed "an az
to prohibit the sale, exchange or GIF
of intoxicating liquors in any county
Justices precinct, city or town in thi
state that may so elect, prescribin
the mode OF election and affiXing
punishment for its violation" Thi
act, generally known as such is, unde
the title of local option, in effect EN-
bodied into the revised statutes Gar
1927 to 1929 inclusive) except the 5tl
section of the act, in which is i'm
posed a penalty for the violation O
the law, and that is SO changed by ar
ticle 1929 as to make the violation
subject to prosecution and punish
ment as prescribed in the penal code
"As seen from the caption Of tn,
act" says Judge White, "its obiec
and purpose is to prohibit the sale
exchange, or gift of Intoxicating
liquors, etc. 1t will be found, how
ever, upon an examination of the var
iouS provisions of the statutes, thai
in regard to every detail concerning
and every prerequisite to the contem
plated election for prohibition and the
subsequent publication of the result
after it has been held, there is nc
mention made of the ''giying away
of intoxicating liquors, and all SAID
provisions have reference to and only
mention the prohibition of "the sale
of Intoxicating liquors. [Gen. laws
1927 to 1928 inclusiVep
X X X 4 X i
In the cases from which the pres
ent appeals are taken appellants were
tried and convicted under the article
of the code just quoted, upon an in
formation charging them " it'll giving
away Intoxicating liquors, in JUS
tees Precinct No. 2, of Wise county,
after prohibition" or local option
had been duly and legally adopted in
said precinct. at an election held for
that purpose. -~-.
Judge White, as the organ of the
court Che and Judge Hurt agreeing,
and Judge Wilson, alone, dissenting),
considers but one of many interesting
questions submitted by counsel, which
point he considers conclusive of the
whole issue, in the view taken by the
majority of the conrt. This question
is, are our civil aud criminal local op-
ton statutes Quoted above) consti-
tutional in SO far as they attempt to
prohibit the giving away of intoxi-
eating liquors within the prescribed
bounds where local option has been
adopted?
ave are fully conscious" he OBJ
serves, "of both the delicacy and diff
Guilty of this question, and after much
research have found no case exactly
parallel with the one under consider
a ion, owing to the fact that no other
state constitution contains a provis-
ion similar to ours with reference to
the subject, so far as we are aware"
The legislature, he reasons, has not
at the point of prohibition.
(by local option of the people,, of the
sale, but upon it's motion has gone
futher and declared that wherever the
people have prohibited the sale of in
toxicating liquors, there it shall be
to give it away, and anyone
who gives away intoxicating liquors
shall be punished. Has the legisla-
ture the power and authority. he
asks, to engraft this additional servi-
tude, if we may so call it, upon the
constitutional act of the peo-
pie? The argument in
of such authority is, that all
power to make laws is inherent in the
people, when acting through their
Legislative branch of government.
That independent of any constitu-
tional provision exclusively inhibit-
ing it, the legislature can, by virtue
of this inherent power, legally pro-
hibit the sale or giving away of iq-
uors throughout or in any part of the
state. That the constitution being
silent upon the subject of giving
away, left that matter where it Of right
still belonged to be acted upon or not
by the legislature as they saw fit, and
that it is evident that the object and
of the trainers of our Or
ganic law was primarily. to provide
that any disposition of intoxicating
liquors, no matter how, might be pro.
vided in any locality where the peo-
pie had declared that such article
should not be sold, and that the pre-
scribing a penalty for giving away
was simply carrying out more effect
ually such original intention, because
to allow giving away in such local
tiles would in a great measure defeat
and render migratory the pro-
hibition, or local option and
the purpose Of its adoption.
Constituting the constitution by it's
own terms Judge White argues that
it did not attempt to provide for the
passage of any law prohibiting gift
of intoxicating liquors; that it pro-
vides only for a law prohibiting the
sale; but that had there been no con-
stitutional action on the subject then
the legislature, by virtue of its inner
ent absolute power, could have passed
a law prohibiting all the different
characters of the uses and disposition
of Intoxicating liquors including a
gift Of the same.
Held, The opinion held by the court
is expressed by Judge White as fol
lows: I'VE hold that article 1929 OF
the revised statutes, and article 378 OF
UllC III OO 1Ol do OAOJ RlO
hibit and impose penalty for the
gift or giving away of intoxicating
liquors within the prescribed limits
where local option has been adopted
are unconstitutional and void, and
that conviction under these pro
visions for a gift or giving away in
toxicating liquors cannot be permit
ted to stand. OF course, if party
under the sham or pretence of giving
away sells some other article for more
than it is worth and gives the pur
chaser as part consideration drinl
OF intoxicating liquor he could bt
prosecuted and convicted, not for the
gift, but sale of the liquor.
Because the provisions of the law
under which appellant was prosecuted
and convicted in these cases, is I'm
constitutional and void the judg
ments are reversed and prosecution
dismissed p. j..
The.opinion is very elaborate ant
interesting.
Judge Wilson dissents from the ar
gument and conclusions reached b,
the court as to the question of con
stitutionality of the law, bnt for othe
reasons stated lin written opinion
holds also that the judgment shoult
be reversed and the prosecution dis
missed.
JUDGE WILSON'S OPINION.
AS Judge Wilson's dissenting opln
ion is brief we make room for it il
full, as follows;
al cannot concur in the opinion o
the majority of the court that articl
1913 of the penal code, in SO far as j