
    CLAUNCH v. STATE.
    (No. 4640.)
    (Court of Criminal Appeals of Texas.
    May 15, 1918.)
    1. Intoxicating Liquors <&wkey;45 — Malt Liquors — Licenses — Repeal of Statute — “Disorderly House.”
    Pen. Code 1911, art. 496, defining as a disorderly house a place in prohibition territory where nonintoxicating malt liquors are sold, is in direct conflict with and repeals articles 157, 158, 160, levying an annual occupation tax on such business in prohibition territory, and no, conviction can be had for failure to acquire the license.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Disorderly House.]
    2. Intoxicating Liquors <&wkey;48 —“Nonintoxicating Malt Liquors.”
    Nonintoxicating malt liquor, as used in Pen. Code 1911, arts. 157, 158, 160, 406, is a fermented malt liquor, containing alcohol in quantities insuuicient to produce intoxication when used as a beverage.
    3. Intoxicating Liquors @=17 — Nonintoxicating Malt Liquors — Prohibition.
    The Legislature has the power to prohibit, as a police regulation, sale of nonintoxicating malt liquors in territory where prohibition is in force.
    4. Licenses @=7(1) — Prohibited Business.
    Courts will not enforce a law, nor can the Legislature pass one, which levies añ occupation tax upon the business of selling an article in a district of the state in which its sale is prohibited.
    Appeal from Fislier County Court; M. A. Hopson, Judge.
    On motion for rehearing. Motion granted, affirmance set aside, judgment of trial court reversed, and cause dismissed.
    For former opinion, see 199 S. W. 483.
    E. A. Watson, of Rotan, and Chas. L. Black, of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, .1.

Appellant insists that, conceding the soundness of the views expressed in the opinion heretofore rendered to the effect that the law in question was valid, a reversal should result from the fact that by a subsequent act the Legislature repealed the law. The prosecution was founded upon a violation of article 157 of the Penal Code, which is on page 51 of the Acts of 1909, and amended by the Special Session of the same Legislature, page 397, and is in Vernon’s Civil Statutes, art. 7476, and Penal Code, arts. 157. 158, 160. It levies an annual occupation tax of $2,000 on all persons selling nonintoxi-eating malt liquors.

In August, 1910, the Thirty-First Legislature, at its Third Called Session (see page 32), passed an act amending the statute defining disorderly houses, and -in this law as amended the following is found:

“Any house located in any county, justice precinct or other subdivision of a county where the sale of intoxicating liquors has been prohibited under the laws of this state, in which such non-intoxicating malt liquor is sold or kept for the purpose of sale as requires a seller thereof to obtain internal revenue license under the laws of the United States as a retail malt liquor dealer ; or any house located in any county, justice precinct or subdivision of a county in which the sale of intoxicating liquors has been legally prohibited, where the owner, proprietor or lessee thereof has posted a license issued'by the United States of America authorizing such owner, proprietor or lessee thereof to pursue the occupation and business of a retail liquor dealer or a retail malt liquor dealer.”

This amendment to the disorderly house statute is in Penal Code, art. 496, and article 500 prescribes a penalty for its violation in the sum of a $200 fine and confinement in the county jail for 20 days.

It was held by the Court of Civil Appeals, in the case of Johnson v. Elliott, 168 S. W. 968, in which the Supreme Court refused a writ of error, that the last-named statute repealed article 157, supra, the license statute, in so far as the latter authorizes the issuance of a license for the sale of nonintoxicating malt liquors in parts of the state where the sale of intoxicating liquors was prohibited. In that case Johnson, the appellant, sought a mandamus to compel Elliott, the tax collector, to issue a license for the sale of nonintoxicating malt liquors at a place in Tarrant county where the sale of intoxicating liquors was prohibited by law. He tendered the payment of the $2,000 tax, and otherwise complied with the requisites prescribed by articles 7476 and 7477, Revised Civil Stats., supra. The mandamus was refused on the ground that article 496, supra, made it unlawful to sell nonintoxicating malt liquors in prohibition territory, and that consequently no license therefor could be issued. This ruling was correct, for courts will not enforce a law, nor can the Legislature pass one, which levies an occupation tax upon the business of selling an article in a district of the state in which its sale is prohibited. State v. Texas Brewing Co., 106 Tex. 121, 157 S. W. 1166; Rathburn v. State, 88 Tex. 286, 31 S. W. 189.

The provisions of article 157, supra, licensing and making lawful, upon payment of the ; tax, the sale of nonintoxicating malt liquors, in its application to prohibition territory, are manifestly conflicting to a degree rendering them irreconcilable with article 496, supra, which makes it unlawful to soil such liquors in such territory. Nonintoxicating malt liquor, as defined in our statute, and as used in each of the laws in question, is a fermented malt liquor, containing alcohol in quantities insufficient to produce intoxication when drunk as a beverage. See authorities cited in original opinion. The Legislature had the power as a police regulation to prohibit the sale of such liquors in territory whore the sale of intoxicating liquors is prohibited by law, this, right existing to protect public health and morals, and to aid in the enforcement of the prohibition laws adopted under the local option provision of the Constitution. Ex parte Dupree, 101 Tex. 150, 105 S. W. 493; Fitch v. State, 58 Tex. Cr. R. 367, 127 S. W. 1040; Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184, and other eases cited in the original opinion.

The conflict between the two provisions (articles 157 and 496, supra) is illustrated by the fact that tlie appellant, who> was here prosecuted for selling nonintoxicating liquors at a certain place in Fisher county without a license, is also prosecuted under article 496 for keeping a disorderly house in the same place; this based upon the fact that he kept in his house for sale nonintoxicating malt liquors. In this latter case, No. 4615, on the docket of this court (204 S. W. 436), he has been convicted and condemned to pay a fine and serve a jail penalty, and the conviction has been affirmed. His conviction in this , case is for failure to obtain a license which under the law could not be issued to him, because the Legislature by the passage of article 496, supra, as construed by the civil courts, within whose jurisdiction is the question of the issuance of license, has determined that in prohibition territory no license for the business in question can be issued. The Legislature doubtless reached the conclusion that the passage of article 496, prohibiting sales of nonintoxicating malt liquors in subdivisions of the state where the sale of intoxicating liquor was prohibited, was a more effective way of accomplishing the purpose in view of preventing sales of nonintoxicating malt liquors in such districts than by means of the license statute mentioned, and to have adopted the prohibition statute in lieu of the license statute and thereby annul the latter so far as such districts are affected.

For the reasons stated, the motion for rehearing is granted, the affirmance of the case is set aside, and the judgment of the lower court is reversed, and the cause dismissed. 
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