STATE v. TEXAS BREWING CO., 157 S.W. 1166

BROWN, C. J. The honorable Court of Civil Appeals of the Second District certifies to this court the following statement and question: “This suit was instituted in the name of the state of Texas and of Clay county by the county attorney of Clay county against .the Texas Brewing Company, which was alleged to be incorporated under the laws of the state of Texas, with its principal office and place of business in Ft.

Worth, Tarrant county, Tex., to recover $8,000 for the state and $4,000 for Clay county alleged to be due by the defendant as taxes for ‘pursuing the business of selling and offering for sale intoxicating liquors by soliciting and taking orders therefor in said Clay county, Tex.,’ for the years 1911 and 1912.

It was further alleged that by election duly held the sale of intoxicating liquors in Clay county had been prohibited ; all the facts necessary to show the adoption of local option in that county being duly set out and alleged in the petition, with the additional allegation that local option was in full force and effect in that county during the years 1911 and 1912.

It was further alleged that the commissioners’ court of Clay county had duly levied a tax of $2,009 a year for the years 1911 and 1912 upon ‘all firms, persons, associations of persons, and corporations that pursue the business of selling or offering for sale any intoxicating liquors by soliciting orders therefor in said Clay county, Tex.’; the taxes claimed being those provided by

chapter 20 at page 53, Acts of Legislature of 1909,

article 7479, Revised Statutes 1911. In addition to special pleas, the defendant filed general demurrer and general denial to plaintiff’s petition. “A jury was waived and the trial judge filed findings of fact and conclusions of law upon which the judgment was predicated. The following are the findings of fact by the trial judge: ‘That the local prohibition law was in force in Clay county during the years 1911 and 1912, and that the commissioners’ court of Clay county duly levied a tax of $2,000 upon the occupation sued on. That during said years the Texas Brewing Company at Ft.

Worth, Tex., during the year 1912, mailed circulars to various citizens in Clay county, giving prices and soliciting orders for household lager beer and other products of the Texas Brewery located at Ft. Worth, Tarrant county, Tex. That, as a result of such solicitations and such advertising, several orders for beer were sent to the company and such orders were filled at Ft.

Worth and the beer shipped to the parties ordering the same in Clay county.’ “After referring to the Acts of Legislature 1909, p. 53, in the conclusions of law filed, the following occurs: ‘The controlling question, therefore, is: Did the Legislature, in passing the act in question, intend to tax persons soliciting business by mail — persons who have their domicile in other counties and transact their principal business in the county of their domicile?

If the act was so intended, and if its language sufficiently expressed such intention, then the acts of the defendant would bring it within the purview of the statute and it would be liable. In the opinion of this court the act was leveled at the peripatetic liquor drummer who operates in a local option county and personally takes orders or solicits orders for liquor.

I do not .think that the Legislature contemplated or intended to tax those who, having their domicile or place of business outside of the county, send out circular letters or advertising literature to the people of a local option county inviting the people to patronize them. If such had been the Legislature^ intent, it would have been easy to have expressed it in simple words so as to make such intention clear.

But this the Legislature failed to do, and this court cannot add to the expressed will of the Legislature, however much he may be inclined to deplore the practice of receiving orders from and shipping liquors into a county that has adopted the local option laws.

Therefore it is the opinion of the court that defendant is not liable for the taxes sued for, and consequently the judgments of the court will be for the defendant.’ “There was no evidence in the record to show that the defendant brewing company ever had a personal representative in Olay county, and the evidence without controversy shows as found by the trial judge, the correctness of which finding is not challenged, that the only solicitation of orders for beer made by the defendant in Clay county was by circular letters mailed to various citizens of Olay county giving prices and soliciting orders for such beer.

The conclusion reached by the trial judge upon the facts so found are assigned as error by appellant. “We have deemed it advisable to certify to your honors for determination the following question: Did the acts of appellee in mailing the circular letters in Ft.

Worth to citizens of Clay county, soliciting orders for beer, without sending a personal representative into the county, constitute pursuing the business or occupation in Olay county ‘of selling or offering for sale intoxicating liquors by soliciting or taking orders therefor’ within the purview of the act of the Legislature above mentioned?” In other words, if the foregoing question be deemed too restrictive, under the facts so alleged and found, was the appellee, the Texas Brewing Company, liable for the payment of the taxes sought to be recovered?” We answer: Neither the state nor the county shows, a right to recover against the brewing company.

The statute under consideration is highly penal in character and must be strictly construed against the claim of the state. H. E. & W. T. Ry. Co. v. Campbell, 91 Tex. 551, 45 S. W. 2, 43 L. R. A. 225; T. & P. Ry. Co. v. Hughes, 99 Tex. 533, 91 S. W. 567. The twentieth

section of

article 16 of the Constitution provides: “The Legislature shall, at its first session, enact a law whereby the qualified voters of any county, justice’s precinct, town, city (or such subdivision of a county as may be designated by the commissioners’ court of said county) may, by a majority vote, determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits.” All powers of government reside in the people, and the officials of the different departments exercise delegated authority; however, the Legislature can exercise all legislative power not prohibited by the Constitution. But the

section of the Constitution quoted provides a method (a referendum) by which the voters of a given territory may exercise the sovereign power of legislating upon this subject, which places the law adopted by them above legislative authority, as if it had been embraced in the Constitution, and we must so consider the local option law adopted by the voters of Clay county, for that, like the Constitution, is the exercise of primary sovereignty; therefore, what is prohibited by the local option law to be done in Clay county, as to sale of intoxicating liquors, cannot be authorized by the Legislature to be done there.

In order to determine the effect of the law which we have under examination, we will assume that the brewing company procured a license from the state and county. Under such license it could by solicitation or taking orders sell and deliver intoxicating liquors in Clay county, because a sale implies a delivery of possession of personal property. Authority to pursue the business of selling intoxicating liquors in a county includes authority to deliver the liquor in that county, because the business could not be pursued if no sales were made, and no sale could be without delivery, actual or constructive.

The words, “by soliciting or taking orders,” do not limit the effect of the sale to pass title, nor do they exclude the delivery of the thing sold at the place where the business is pursued. Those words are descriptive of the method of selling. The local option law and the Constitution prohibited the sale of intoxicating liquors in Clay county, and the Legislature could not authorize the pursuit, by any method, of the business of selling such liquor there. The state cannot levy an occupation tax on a business that, being pursued, would be a violation of the law and Constitution.

Such 'license would not protect the licensee against prosecution for sales made under it. It logically and necessarily follows that, if the “business to be licensed” included the sale of intoxicating liquors in Clay county, the levy of the tax was void. The third

section of the act provides: “Each person and each firm and each corporation and each association of persons desiring to engage in the business mentioned in

section 1 and 2 of this act in said local option territory before engaging in same shall file with the county clerk of the county in which the business is to be pursued, an application in writing for a license to engage therein and shall state the county or portion of the county in which the business is to be pursued, and if within the corporate limits of any incorporated city or town, that fact shall be so stated,” etc.

It is beyond all question that the license must have been issued by the clerk of the county in which the business was to be pursued, and the business of selling intoxicating liquors in Olay county, by any method, being unlawful, it was not the subject of taxation by the state or county. If, however, it were held that the business of selling intoxicating liquors in Olay county might be pursued by mailing circulars in Tarrant county to residents in Olay county, inviting them to buy beer in Ft.

Worth, that would not sustain a recovery, because a sale made in Tarrant county would pass title there and no sale would be made in Clay county; therefore the business of selling would be pursued in Tarrant county. Dolan v. Green, 110 Mass. 322; Sarbecker v. State, 65 Wis. 171, 26 N. W. 541, 56 Am. Rep. 624; Garbracht v. Commonwealth, 96 Pa. 419, 42 Am. Rep. 550; Abberger v. Marrin, 102 Mass. 70; Woolsey v. Bailey, 27 N. H. 217; United States v. Orene Parker Co. (D. C.) 121 Fed. 596.

Assuming that the letters mailed to persons in Clay county constituted a solicitation there, the delivery of it in Tarrant county constituted the place of sale, being the place where the liquor was received by the purchaser. Hence there was no business of selling intoxicating liquors pursued in Clay county by such soliciting. Surely a circular inviting patronage could not be more effective than the solicitation and contract of sale by an individual representative taking orders to be filled in territory where the sale was legal.

The authorities are unanimous that such transactions are governed by the law at the place of delivery to the buyer. There is no evidence that the brewing company undertook to deliver beer in Clay county. There can be no reasonable doubt that the language of the statute designates as taxable a business pursued, in Clay county; the language is definite; but it is rendered more certain by the association of the business of cold storage which must necessarily be in the county. If we concede that the language in

section 1 may be construed to mean that a sale may be made in Clay county by means of soliciting or taking orders to be filled in another county, then the facts certified do not establish liability, because if the beer was delivered in Tarrant county it was not a sale in Clay county where forbidden, but in Tarrant county where it was lawful. The sending out of circulars into prohibition territory is not forbidden nor taxed.

In the prohibition states the sale of intoxicating liquor within the state was unlawful, and the question of law that we have under examination has been passed upon in many cases by courts of different states, and it has been uniformly held that the title to the liquor vested at the place where delivery was made to the buyer in person or to carrier for delivery unless the seller contracted to deliver at the home of the buyer.

Where an agent of the dealer, whose business was in New York, solicited and took orders for liquors to be shipped to Michigan or other prohibition state, it has been held that the title passed to the buyer „in the place of delivery to the carrier, and said sale has been uniformly held to be valid. The case of United States v. Orene Parker Co., cited above, is a fair illustration of the rule. The ease is very similar in its facts to this case. We have cited a small per cent, of the cases which have dealt with this subject, but those cited are conclusive of the main question in the case as certified.

There is no limitation upon a sale to be made under the license to' a purpose which would be lawful under the local option law, but it would permit and authorize such sale generally. Attention has been called to Snearley v State, 40 Tex. Cr. R. 507, 52 S. W. 547, and to the same case reported in 53 S. W. 696. Those cases are wholly irrelevant to the question in this ease. HAWKINS, J., dissents.