Untitled Texas Attorney General Opinion

April 30, 1957

Honorable L. Dewitt Hale, Chairman Liquor Regulation Committee House of Representatives Austin, Texas Opinion No. W-104 Re: Constltutlonallty of House Bill 487, pro- hibiting the sale of intoxicating liquors, beer or wines in gro- cery stores or food Dear Wr. Hale: markets. You have asked the opinion of this office as to the constitutionality of House Bill 487, 55th Legislature, 1957. This Bill is to add a Section numbered li'bto Article I, Chapter 467, Acts of the m Legislature, Second Called Session, 1935. In examining the statute which the bill is to amend, we find no Chapter 467 of the 45th Legislature, Second Called Session 1935. We assume you refer to Chap- ter 467, Acts of the 44th Legislature, Second Called Ses- sion, 1935, which is the Texas Liquor Control Act, and that the discrepancy will be corrected. We would also note that paragraph (2) of Section li'bwhich Is to be added to the Liquor Control Act provides a penalty for violation of paragraph (1) of Section 17b. This penalty is a fine of not less than $250 nor more than $1000 or imprisonment of not less than 30 days normy;etF;n six months, or both such fine and imprisonment. does not provide whether the Imprisonment is to be in the jail or the state penitentiary. We assume that this oversight will also be corrected. The pertinent portion of the Act reads as follows: "Section 17b. (1) No person shall sell intoxl- catlng liquo$, beer or wine in a grocery store or food market.

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Under the Texas Constitution, the Legislature has the power to regulate the sale of intoxicating liquors, which power is expressed in the following language, in Arti- cle XVI, Section 20, (a): "Sec. 20 (a) The open saloon shall be and Is hereby prohibited. The Legislature shall have the Dower, and It shall be Its duty to define the term 'open saloon' and enact laws against such. "Subject to the foregoing, the Legislature shall have the power to regulate the manufacture, sale, possession and transportation of intoxicating liquors, including the power to establish a State Monopoly on the sale of distilled liquors." Although this power to regulate the sale of intoxl- eating liquors does not include the power to enact state- wide prohibition, the sale of Intoxicating liquor may be pro- hibited or permitted under such conditions and in such places as the Legislature shall deem necessary. Ex Parte Bell, 24 Tex. Cr. R., 428; 6 S.W. 197 (1887); Bx Parte Peede, 75 Tex. Cr. R. 247, 170 S.W. 749 (1914); Edgar v. McDonald, 106 S.W. 1135, (Tex. Civ. App. 1908). The first question Involved is whether the statute restricting the sale of intoxicating liquors, beer and wine in a grocery store or food market is a reasonable regulation of the sale of alcoholic beverages. The test in determining whether a statute is discriminatory against a certain class, in this case, grocery stores, Is whether there Is any reason- able basis for the classification. San Antonio Retail Gro- cers v. Lafferty Tex o 297 S.W. 2d 813 (1957); Clark v. Finley 93 Tei.171, 54 m'343 (1899); Jerard v. Smith, 52 S.W.2dg347 (Tex.Civ.App. 1932, error ref'd). There are no Texas cases directly in point on the determination to be made here, but the Courts of other jurisdictions give us some authority on which we may make a determination. The law applicable to this determination, as above stated, is more clearly stated in United Cigar-Whalen Stores Corporation v. Delaware Lfquop Commission, 2 Terry 74, 15 A. 2d 442 (1940), wherein the statute prohibited the sale of intoxicating liquor in a 'grocery store, delicatessen shop or cigar store":

Honorable L. Dewitt Hale, page 3 (WW-104)

"As to the second question, it is contended that the Legislature of this State, In t~heact in question, has adopted an arbitrary and unreason- able classification of persons prohibited from the sale or dispensing of alcoholic liquors, and that thus this appellant Is deprived of those equal rights enjoyed by persons in other occupa- tions. "Now the control and supervision of the traf- fic in alcoholic OP intoxicating liquors comes peculiarly wfthfn the general police powers of a State, and the Legislature has plenary power to require occupational licenses before anyone is qualified to deal in such liquor. When the Legls- lature indulges in a classification of persons in connection with any occupatfonal license, such legislative classification 1s entitled to a very high measure of judfclal support. The classiflca- tion must be clearly arbitrary and capricious before a court can interfere with a legislative judgment. If any state of facts can reasonably be conceived as sustafning the classification, the existence of such facts must be assumed as the basis of the legislative action. When the legisla- tfve classification is clearly arbitrary and capricious and based on no tangible or substantial distinction, thelabbut not untfl then, can the courts interfere, The reasonableness of prohibiting the sale of alcoholfc liquors in grocery stores has not been considered in the State of Texas, but fn all the other states wherein this classffication has been considered, the classification has been upheld as a reasonable classification and a valid

sioners, 7 N.J.L. 4.96,57 Atl. 153 (1904); Tlttsworth v. Okin, 454, 159 So. 779 (1935)p where similar statutes were ii8-FEFla. also involved. In the Qreat Atlantic & Pacific Tea Company case, supra, the statute provided that no retail liquor license should be granted "to any fllrm,corporation or person whose

Honorable L. Dewitt Hale, page 4 (WW-104)

principal business is the sale at retail of groceries and/or meat products." The question of the reasonableness of the classification made in this ordlnanae was clearly presented to the Supreme Court of Illinois. That aourt upheld the statute. Upon these out-of-state cases we advise you that House Bill 487 Is not based upon an unreasonable, arbitrary or capricious classification. The Texas courts may not follow these cases, but until a Texas court passes on the question we feel that they are the law. We do not think the case of San Antonio Retail Gro- cers v. Lafferty supra, to be controlling on the determina- tion we are call&d uwon to make. exceot as the law In that case also applies to-the present determination. The court in the Lafferty case concluded that the operation of the act was discriminatory, and stated further: I, . . . but the mere fact that the act discriminates against grocery stores does not render it unconstitu- tional. Before we may strike It down It must appear that there is no reasonable relationship between the class created and the purposes to be accomplished or the evils to be prevented." (Citing Autnority) The second question which arises concerning the con- stitutionality of this bill is that of its certainty and de- finiteness under Article I, Section 10, of the Texas Consti- tution and Article 6 of Vernon's Penal Code. There is no question that the bill intends to define an offense or that the offense is the selling of intoxicating liquors, beer or wines in a grocery store or food market. The question is whether the term 'grocery store or food market have a definite meaning. Article 7, V.P.C., provides that penal statutes "shall be construed according to the plain Import of the language in which it Is written." Article 8, V.P.C., provides that all words used in the Penal Code except where specially defined are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed. In at least one case in the State of Texas, the Court of Criminal Appeals had no difficulty with the use of the word 'grocer" in the "Sunday law" (Art. 286,V.P.C.) of the State of Texas. In Hanks v. State, 50 Tex..Cr. R. 577, 99 S.W. 1011, (1907), the court held that a farmer who sold

Honorable L. Dewitt Hale, page-:5(WW-91C4)i.

wine and cider which he had..,producedon his own farm, and which was kept for sale ~athie house:was:.nota "grocer" within the meaning c+the Sunday law..,, Thus, the courts of Texas have, at least negatively, defined the term "grocer." Furthermore, these terms have been judicially defined in ,other jurisd~ia,tions.Goldstine v. State, 230 Ind. 343; 103 N. E. 2d 438 (1952) ("grocery store"r; Private A. S. Realty'Corp. ,v. Julian, 214 App. Div. 628, 212 N.Y.S. 4 t ) t"grocery") P Shifrin, 198 Misc. 348, lOl'~.Y~~%d 613 (1950) ["~~~d'~t~res"). How'ever,the term "food market" is not in general use and has 'no well define,d'meaning. We think it too vague and advise you that without further definition it would not be,constitutional; ~Groceriesand foods are sold under such; a variety of circumstances that there would be great doubt in border line cases. Many city department stores have gro- cery departments while drug stores handle many food items. There are a few old time general stores remaining in rural areas, but the trend in suburban areas Is towards one com- prehensive self-service type store which se~e~msto sell any- thing which can be packaged. Traditionally in Texas the word "market" sometimes refers to an area set.apart,for farmers who sell their produce. Any attempt to regulate sales In an area would conflict with the local optton laws. Therefore, it is our conclusion that House,Blll 487, 55th Legislature, 1957, is too vague and indefinite for lack of specific definition of the term tlgrocerystore or food market.' It is our opinion that this renders this Bill un- constitutional under the terms of Article I, Section 10, of the Texas Constitution.

SUMMARY House Bill 487, 55th Legislature, 1957, prohibiting the sale of Intoxicating liquor, beer, or wines in a grocery

Honorable L. Dewitt Hale, page 6 (W-104)

store or food market ia unconatl- tutlonal under ._. Article . I, Section 10, Texas conatltution.

Yours very truly, WILL w1Ls0pl Attorney Qeneral of Texas

APPROVED: OPIHIOIf COMMITTEE : J. C. Davis, Jr., Chairman Leonard Pasamore John Reeves J. L. Smith