
    CONE v. STATE.
    (No. 6562.)
    (Court of Criminal Appeals of Texas.
    Jan. 4, 1922.)
    1. Intoxicating liquors &wkey;»l3 — Constitutional amendment repealing local option legislation construed.
    Const, art. 16, § 20, as amended May 24, 1919, so as to repeal former section 20, giving the Legislature power to enact laws submitting the question of local option to the people, and repealing all laws depending on the exercise of such power, but containing a saving clause as to prosecutions for violation prior to the amendment, has no application, after its adoption, to liquor law violations after such date, and sales thereafter and prior to the passage of laws making the amendment effective must be prosecuted as for violating the express terms of the amendment itself.
    2. Intoxicating liquors <&wkey; 13 — Prosecution for transporting liquor into local option territory held not maintainable, in view of constitutional amendment.
    A prosecution for unlawfully transporting intoxicating liquor, brought under Acts 33d Leg. 1st Called Sess. (1913) c. 31 (Vernon’s Ann. Ren. Code 1916, arts. 606a-606q), as amended by Acts 35th Leg. 4th Called Sess. (1918) c. 31, forbidding transportation of intoxicating liquor into local option territory, held not maintainable, in view of the amendment of Const, art. 16, § 20, by popular vote on May 24, 1919, abolishing local option; the unlawful transportation being charged to have taken place after the amendment became effective.
    3.Intoxicating liqours <&wkey;l32 — Act prohibiting illegal transportation construed.
    Acts 35th Leg. 4th Called Sess. (1918) c. 24, forbidding transportation of intoxicating liquors within the state, covers all transactions involving illegal receipt, delivery, or transportation of liquor occurring subsequent to its enactment and prior to the adoption of the Dean Law.
    Appeal from District Court, Rockwall County; Joel R. Bond, Judge.
    E. G. Cone was convicted of unlawful transportation of liquor, and he appeals.
    Reversed and remanded.
    T. B. Ridgell, of Breckenridge, and Florence, Florence & McClelland, of Gilmer, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Rockwall county of the unlawful transportation of liquor, and his punishment fixed at one year in the penitentiary.

From the record it seems that appellant was prosecuted under the provisions of chapter 31, General Laws First-Called Session Thirty-Third Legislature (Vernon’s Ann. Pen. Code 1916, arts. 6(J6a-606q), as amended by chapter 31, General Laws Fourth-Called Session Thirty-Fifth Legislature, by which, in general terms, the transportation, delivery, etc., of intoxicating liquor into local option territory was forbidden by statute. The date of the offense charged against appellant appears to have been September, 1919. On the trial appellant objected to being tried under the provisions of said law, and reserved his exception to the charge of the court in submitting his guilt and punishment thereunder, upon the ground that such law was no longer effective since the adoption of the constitutional amendment forbidding the sale of liquor and the enactment of the Dean Law.

On May 24, 1919, by popular vote, section 20, art. 16, of our state Constitution, was amended, and the proclamation of the Governor putting same into effect was of date July 3, 1919. By the terms of said amendment former section 20 was struck out of the Constitution and repealed. Said section was the one which gave to the Legislature power to enact laws submitting to the people of a given territory for their determination the question as to the sale vel non of intoxicating liquor within such territory. The repeal of said section 20 necessarily carried with it the repeal of all laws depending for their validity upon the exercise of the power conferred by said section. When amended section 20 became effective, the former section 20 died, and with it also died its descendants and dependents, except in so far as the saving clause of said amendéd section 20 kept the provisions of such laws alive for the purpose of prosecuting offenses committed thereunder prior to the adoption of the amendment. It is possible that the instant prosecution resulted from a misapprehension of said saving clause, which is as follows:

“Liability for violating any liquor laws in force at the time of the adoption of this amendment shall not be affected by this amendment, and all remedies, civil and criminal, for such violations shall be preserved.” Acts 36th Leg. p. 338, subd. (c).

But any careful consideration of this text will make plain the fact that it could only include prosecutions for acts committed pri- or to adoption of such amendment. It in terms preserves only liability for violation of liquor laws in force at the time of the adoption of such amendment. After its adoption there could be no sales of liquor in local option territory illegal ipso facto, ¡because there was no longer any local option territory. Any sal°s thereafter, and prior to the passage by the Legislature of laws making such amendment effective, must have been prosecuted as for violation of the express terms of the amendment itself. Berlew v. State, 88 Tex. Cr. R. 241, 225 S. W. 518.

It is true that said amended section 20 only made penal sales of the prohibited liquors, and that appellant herein is not prosecuted for selling, but for transporting, such liquor. Such transportation, however, is charged to have been into local option territory, and the date of such transportation being alleged as of September, 1919, and there being then no such territory in this state, by reason of the taking effect prior thereto of said state-wide amendment, it must follow that the objections and exceptions of appellant to the submission of his guilt of the transportation of liquor into local option territory were well taken and should have been sustained. That no prosecution could be sustained for transporting liquor into local option territory when the offense was committed at a date subsequent to the becoming effective of said amendment is evident, and if upon another trial of this cause the proof should show transportation at such subsequent date, a conviction should not be permitted.

That the state is not without remedy against a transaction such as is herein charged, and of date as herein charged, is also evident. By the provisions of chapter 24, Acts Fourth-Called Session Thirty-Fifth Legislature, the transportation of intoxicating liquors within this state is made penal. It is true that portion of said act relating to sales of liquor was held unconstitutional in Ex parte Meyer, 84 Tex. Cr. R. 288, 207 S. W. 100, but the remaining portions of said act have been upheld by this court, and that part of said act forbidding the manufacture and transportation of intoxicating liquor has been upheld. Ex parte Davis, 86 Tex. Cr. R. 168, 215 S. W. 341; Amaya v. State, 87 Tex. Cr. R. 160, 220 S. W. 98; Baldauf v. State, 87 Tex. Cr. R. 228, 220 S. W. 550; Coleman v. State, 87 Tex Cr. R. 240, 220 S. W. 1097. Said act would appear to cover all transactions involving illegal receipt, delivery, or transportation of liquor occurring subsequent to its enactment, and prior to the adoption of what is known as the Dean Law. Acts 36th Leg. (2d Called Sess.) c. 78.

There appears a sharp controversy in the record over the filing of appellant’s bills of exception to other matters transpiring upon the trial, but as, in our opinion, the case must ¡be reversed for the reasons stated above, we deem it unnecessary to pass upon the merits of this controversy.

For the reasons mentioned, the judgment of the trial court will be reversed and the cause remanded. 
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     