Gearheart v. State (81 Tex. Crim. 540, 1917)

MORROW, Judge.

This was a prosecution under article 589, P. C., prohibiting the pursuit of the business or occupation of selling intoxicating liquors in territory where such sale is prohibited, by law.

At an election held in July, 1907, the sale of intoxicating liquors in Collin County was prohibited. No subsequent election has been held, and appellant contends that article 589, supra, which was passed in 1909 would not be operative in Collin County, insisting that this Act creating the offense of pursuing the occupation of selling intoxicating liquors in prohibited territory should be the foundation of a prosecution only in territory in which the election was held subsequent to the passage of the Act.

The precise question was decided adversely to appellant’s contention by this court in case of Fitch v. State, 58 Texas Crim. Rep., 367. In a very carefully prepared brief and interesting oral argument appellant insists that the conclusion reached in the Pitch case was erroneous and that notwithstanding that decision the question should be reviewed, and urges in support of this view the decision of this court in the , case of Lewis v. State, 58 Texas Crim. Rep., 351, and the decisions of this court previously decided and cited therein, among them being: Dawson v. State, 25 Texas Crim. App., 670; Ex parte W. R. Elliott, 44 Texas Crim. Rep., 575; Robinson v. State, 26 Texas Crim. App., 82; Lawhon v. State, 26 Texas Crim. App., 101; McElroy v. State, 39 Texas Crim. Rep., 529. The point decided in the Lewis case, supra, was that in a county where the sale of intoxicating liquors was prohibited by a local option election held in 1902, and the penalty for making sales was then prescribed by law, that a subsequent Act of the Legislature passed in 1909 making the penalty more onerous for the sale of intoxicating liquors would not be enforced but the penalty for the sale in such county would be that which was in force at the time the election was held. Appellant’s argument is that the Lewis case, supra, and the Pitch case, supra, are inconsistent and that to harmonize them the Pitch case should be overruled.

The argument that the cases mentioned are somewhat inconsistent is plausible, but it does not logically follow from this that the Pitch case is based upon unsound principles. The Lewis case, supra, was preceded by the case of Dawson v. State, 25 Texas Crim. App., 670, and other cases mentioned above. In the Dawson case the Assistant Attorney General, who is now presiding judge of this court, gave, in his •brief, very cogent reasons for his contention that the court should reach the conclusion contrary to that which it did reach in the decision of that case. His contention was in effect that section 20, article 16, of the Constitution, which provides that the Legislature shall enact a law whereby the qualified voters may, by a majority vote, determine from time to time whether the sale of intoxicating liquors shall be prohibited within prescribed limits, did not require the submission to the people of the terms of the law or the penalty for its violation, but the question only as to whether the sale should be prohibited, leaving the Legislature free to prescribe penalties at its will for violations of the law. This brief of Judge Davidson was reproduced by Judge Ramsey in writing the opinion in the Lewis case, 58 Texas Crim. Rep., 355.

His contention is apparently in harmony with the idea of the Supreme Court of this State expressed in Ex parte Dupree, 101 Texas, 150. The opposite view, however, having been taken in the decision of the Dawson case, this court in deciding the Lewis case, supra, felt constrained ■under the doctrine of stare decisis to make the ruling in the Lewis case consistent with that of the Dawson case and cases following it. The Lewis case was founded upon the additional rule of law stated therein as follows: