Honorable W. D. Bradfield
Chairman
Texas Liquor Control Board
Austin,  Texas

Dear Sir:               Opinion No. O-1.708
                        Rc: Is the def'inition    of the words
                            "open saloon",     as contained in
                            Article  666-3   of the Penal Code
                            void because unreasonable?
             We have your letter  of November 16, 1939,    in which
gourequest    the opinion of the Attorney General as to     the
validity   of the above captioned statute on account. of    the
definition   which is therein given by the Legislature     to the
words "open saloon".
             On account of the importance of this subject,       we
quote   your letter  in full, which reads as follows:
            "As Chairman of the Texas Liquor Control
    Board, I am writing to request your opinion,    as
    Attorney General of Texas, on the validity   of
    that part of the Texas Liquor Control Act which
    defines the term 'open saloon',  as used in the
    Act, as meaning: 'any place where any intoxicants
    whatever, manufactured in whole or in part by means
    of the process of distillation,  or any liquor com-
    posed or compounded in part of distilled   spirits,
    is sold nr offered  for sale for beverage purposes
    by the drink or in broken or unsealed containers,or
    any place where any such liquors  are sold or offered
    for sale for human consumption on the premises where
    sold~'.
            "It will be noted that the necessarily     im-
    plied effect  of this definition    of the open saloon
    is to provide that only saloons licensed     to sell
    whiskey shall be included in the definition,     and that
    saloons not licensed   to sell whiskey but only li-
    censed to sell intoxicating    liquors  other than Whis-
    key shall not be regarded as open saloons and, there-
    fore,  shall not be subject to the regulations     and
Honorable   W. D. Bradf ield,   Page 2   (o-1706)

    inhibitions    applicable     by law to open saloons.       As,
    of course , you are aware, Section 20 of Article            16
    of the Constitution       of Texas, adopted by the people
    at a special election       on August 211, 1535, provides
    in its first    sentence that: ‘The open saloon shall
    be and is hereby prohioited~.         The Legislature    sha.11
    have the power and it shall be its duty to define
    the term “open saloon’ I and enact laws against
    such. ’ Then, the next paragraph of the constitu-
    t ional amendment, adopted at this same election,
    provides that only subject to this limitation            shall
    the Legislature     of Texas ‘have the pcwer to regulate
    the manufacture,      sale, possession,     and transportation
    of intoxicating     liquors.’     In view of the fact that
    for many years prior to the adoption of statewide
    prohibition    by constitutional      amendment i..n 1919,
    large numbers of the licensed         saloons operating in
    Texas were wine and beer saloons not licensed            to
    sell distilled    liquors,     it has been suggested,     with
    what I regard as unanswerable force,          that the defi-
    nition of the open saloon, which effectually            de-
    clares that wine and beer saloons are not onen sa-
    loons is unreasonable-upon        its face;.and   is,therefore,
    void,

            “Believing    that it is highly important
    that the Texas Liquor Control Board and the people
    of Texas should be authoritatively        advised as to
    the validity    of this statute,    I am writing    to re-
    quest of you, as the constitutional        legal adviser
    of the State and of the Texas Liquor Control Board
    and of its Chairman and officers,        your opinion,    first,
    as to the validity     of this  statute;   and, second, in
    case you find the present statutory        definition
    of the open saloon invalid under the Constitution,
    your legal opinion is invited as to the effect          of
    such unconstitutionality      and invalidity    of the
    statute referred    to upon the remainder of the Texas
    Liquor Contra1 Act .'I
            It is believed  that the Attorney General should
never advise the law enforcement officers of the State
that a criminal atatute,   or any section of a criminal
statute,  is void merely on the ground that it is deemed to
be unreasonable in its terms, or in its definition    of terms.
            In a cast wh:re a statute        is ambiguous, and is
subject to two constructions,     one of     which would give to
the statute a~reasonable result and         effectuate    the purpose
of the law, and another construction,          though it should be
based upon the more literal    terms of      the statute would
lead to an absurd result and defeat         the purpose of the law,
the courts will unhesitatingly     reject      the latter   and adopt
the former construction.         But where a statute is plain and
unambiguous in its terms and, therefore,           construes      tiself,
the courts will not strj.ke it down mcr~CIy because              it
appears to be unreasonable in it.s provisions,              or that 1-t
was conceived Jon unwisdom; for, if the courts were actuated
merely~ by cci:lsiderations     of expediency in such cases, and
should assume to an!Ml on that ground, alone, it would be
a substitution      of the judicial    for the legislative        mind.
Moreover, I.:? passing     upon  the  Acts of  the Legisla~ture,       i.3~
courts    as well as the executive departmects of the State
must yield    willing   allegiance    to 8Cd be bound by the Con-
stitutiou    in ail of its parts, and especially,             in this
connection,    to t!lat declaration      in the Bill. of Rights
wherein it is provided that, "The faith of the people of
Texas stands pledged to the Freservati.on of a Replzblicai?
form of goverrment";       slnd Article II of the Constitution,
which provides:
              "Section 1. The powers of the Government
      of  the State of Texas shall te divided into
      three distinct    departments,  each of which shall
      be confided to a separate body of magistracy,
      to-wit:   Those which a‘re Legislative     to one; those
      which are Executive to another, and those which
      are Judicial    to another; and no perSOr1,    or.col-
      lectiorr of persons, being of one of these depart-
      ments, sh~all exercise    any power properly attached
      to tither of the others, except in the instances
      herein expresslzy permitted."
              The Supreme Court of this State, throughout a
 judicial    history    of one hundred years, has steadfastly        adher-
 ed to those constitutional         barriers  in passing upon and con-
 struing the Acts of the Lc+slaSur;e.           While the Court has,
 at times, struck down a legislative          Act because it was unin-
 telligible     in its terms, and, therefore,       unenforceable    atiaw
 and,    ic mazy   I.nstances,  has  declared  void  legislative    en-
 actments because they were passed fin violation            of consti-
 tutional. provisions,       we know of no case where that Court
 has annulled a statute on the single ground that it may
 have been considered to be an unreasonable or unwise t?tXICt-
 ment.
           What has been said is well illustrated in the:
 following text from 39 Tex. Jur., Sec. 89, at page 162,                 where-
 in it is stated:
              "When statutes  are up for calstruction,   as
      often remarked, it is not within the judicial
      provi.nce to indulge in acts of legislation.      It
      is for the Legislature,     not the courts, to remedy
      defects   or supply deficiencies   in laws, and to
      give relief   from unjust and unwise legislation,
llonorable   W. D. Bradfield,      Image4 (o-1708)

     although a court may, of course, direct the at-
     tention of the law-makers to a defect or omission
     in a statute.
              "The proper function of a court in this
      connection    is to declare and enforce the law as
      made by the Legislature,          - to determine with as
      much definiteness        and certainty      as may be what
      the law is as it stands, rather than to announce
      what the law should be or to speculate as.-- to wh2
       it is as it is. Accordingly,  ---a--dourt         is not author-
     --Ti%r
       ised,          an-text,          to modify, repeal,        or
      re-wrim??tute.--GT               (as seen above, Sec. 88)
      even to 'construe'-       an unambiguous act to conform
      to its own notions---     of ;justice,     policY,p~~323&
     s--- wisdom,--'* So, however desirable          it might seem
       in certain cases, a court is not privileged                to
       interpolate    words, to add or eliminate provisions,
      or to enlarge,       extend or restrict        the scope of a
      law, except as this may be necessary to effectu-
      ate the legislative        intent."     (Italics     ours.)

           The statute to which you direct the attention  of
the Attorney General is Subdivision  (a) of Article  666-3
of the Texas Liquor Control Act, which reads as follows:
              "(a) The term 'open saloon',      as used in
     this Act, means any place where any alcoholic
     beverage whatever, manufactured in whole or in
     partby      means of the process of distillation,
     or any liquor composed or compounded in part of
     distilled     spirits,  is sold or offered for sale
     for beverage purposes by the drink or in broken
     or unsealed containers,       or any place where any
     such liquors are sold or offered        for sale for
     human consumption on the premises where sold."
             It is believed that this statute is plain and
unambiguous, and is not susceptibe     to judicial construction
and, therefore,    unless its enactment was forbidden by some
constitutional    provision,  it cannot be held to be void
because it may be thought to be unreasonable in its defini-
tion of the term "open saloon'.
           So far as our investigation      has gone, that term
has never been otherwise defined in any of the Legislative
Acts dealing with the subject of intoxicating         liquors.
Webster's New International     Dictionary   gives as one, and
the commonly accepted,     meaning of the word 'saloon'        asbe-
ing."a shop where intoxicating      liquors are sold and drun?x,
commonly without meals".      But that word has a wider signifi-
cation,  as is illustrated    by the variou~s definitions       given
to it in Bouvier's    Law Dictionary,    which reads:
Honorable   W. D. Bradfield,   Page   5,   (O-1708)


            "Saloon. A place of refreshment.       An apsrt-
    ment for a specified      public use.     In common par-
    lance, the word is used to designate a place where
    intoxicating    liquors are! sold, and this restri.cted
    meaning may bc given to saloons,         where the context
    or other circumstances       require it; but it does
    not necessarily     import a place where liquors are
    sold.    The w.ord has a much broader meaning than
    dram shop.     To constitute     a saloon it is not necc's-
    sary that ,ardcnt spirits       should be offered for
    sale and that it should be a business requiring a
    license   under the revenue laws of the State."
           Various authorities     are cited       in the text     which
are omitted in the quotation.
          One of the cases cited by Mr. Bouvier is the
Texas case of Early vs. State, 23 Tex. App. 364, 5 S.W.
122, from which we quote:
           "Now, does the word 'saloon'  necessarily    im-
    ply that it is, or is the word convertible     with the
    expression,  Ia house for retailing  spirituous   liquors?'
    We think not, and the authorities   in effect have de-
    clared otherwise in this state."
            In the case of Springfield       vs.    State,   13    S. W.   752,
the court   said:
            "It is charged in the Indictment that defend-
    ant 'did unlawfully play at a game with cards in a
    house for retailing   spirituous     liquors'.     This charge
    is not supported by the evidence before us.            It was lot
    proved that the house in uhl.ch defendant played cards
    was a house for retailing     spirituous     liquors.    The
    proof was that he played in a 'saloon'.           A 'saloon'
    does not necessarily   mean Ia house for retailing
    spiri.tuous liquors'.   Early's     case', 23 Tex. App. 364,
    5 S.W. Rep. 122. . .   Because    a  conviction     is un-
    warranted by the evidence the judgment is reversed,
    and the cause remanded."
          And in the case of McMurtry vs. State,              38    Cr.
    App. 521, 43 S.W. 1010, 1012, the couvt said:
             "There is no allegation   in terms charging
    that the room where the game of cards was played
    was at a place for retailing      spiritous  liquors,
    unless it be conceded that the use of the language
    '8ud Benson's Saloon' is tantamount to an al.l.cga-
    tion that i.t 17~3s a place for retailing    spirituous
    liquors.     The word 'saloon'   has a varied meaning.
    It m3-r Yapapplied to a olace Xor ret:aS.linrc spiritu-
.   .   ’   Honorable   W. D. Bradfield,    Page 6, (O-1708)
                ous liquors,  or to many other kinds of places.
                We do not believe   that the allegation in this
                respect is sufficient."
                        The decisions  from which the above quotations
            are taken are early cases, but, while we have investi-
            gated, we do not find,that     these cases have been modified
            or over-ruled   by any subsequen t decisions  by our Coupt
            of Criminal Appeals.
                         Hence, it appears that   the word 'saloon'     is a
            proper one for a legislative     definition.     Especially   do
            we think this is true in a statute       which creates a penal.
            offense.     It would create an uncertainty     in th? law, in a
            case of this ki.nd, to leave it to a judge to define the
            meaning of a term which has more than one meaning, and which
            must be defined to make the law certain,       for one judge
            might construe the word oue way and another judge in a
            different    way, and it is to avoid such uncertainties       in the
            enforcement of the law, and especially       the criminal laws of
            the State, that it is required that a statute which creates
            a criminal offense must define the offense in plain and
            intelligible    terms.
                       At an election    held on the fourth Saturday in
            August,  1933, the qualified     voters of the State adopted an
            amendment to Section 20 of Article        XVI of the Constitution
            which had the effect    to authorize     in certain localities
            of the State  the manufacture and sale of malt and vinous
            liquors not to exceed a definite       alcoholic    content, and
            also to authorize in other localities        only upon a local
            option vote of the people in the manufacture and sale of
            such liquors.   That amendment and the legl.slative         Acts pass-
            ed in pursuance thereto were in effect         August   24, 11.935, when
            another amendment to Section 20 of Article          XVI of the Constg
            tution was adopted,   which   is  generally    referred   to as the
            amendment to the Constitution       repealin& 7 statewide prohibitfon.
                        In consideration   of the status then existing  in
            the State respecting     the manufacture and sale of beer and
            wine, the Attorney General would hesitate     to hold, if he
            had the authori.ty SO to do, that the definition     which the
            Legislature   has given to the words "open saloon" in the
            Act creating the Texas Liquor Control Board, and which'was
            passed pursuant to said amendment, is so unreasonable as to
            render the statute void.
                        However,   there is a more demanding reason why the
            Attorney   General should not so hold.      All the words and pro-
            Vision:5  of the said amendment to the Constitution       have been
            carefully   consi.dcred in the study of the questions which
            you have propounded, but assuming that they are equally well
            known to you, and generally     understood,    we h,ave given
 Honorable   W. .D. Dradfield,    Page 7 (0.~1708)

 special.’ attention  to -;hose provisions   of the amendment
 which are especially    applicable   to this discussion, and
 which we quote:
               “Section 1 i That Article  XVI of the Coti-
       otitut ion of Texas be amended by striking      out
       Section 20a to Sctition 2Oe, both inclusive.      and
       substituting    in lieu thereof the follo\fine:
              “Article    X%1, Section 20 (a). The open
       saloon shall be and is hereby prohibited.     The
       Legislature     shall have pow&, and it shall be
       its duty to define the term .*open saloon’ and
       enact laws against such.
              “Subject to the’ foregoing,    the Legisl.ature
       shall have the power to regulate      the manufacture,,
       sale, possessl,on and tra.nsportatlon     of intoxicat-
       ing liquoro,   including the power to establish       a
       State monopoly bn the sale of distilled       liquors   , , ‘1
               While the Constitution,        like any other written
   document, in subject to judiciul          construction,    when s&h
   conotruction    is coll~d for , yet in passing upon a consti-
   tutional   provision    I;lic courts are not warrant&l in exc?.ud-~
   In& from thcfr consideration         one .section   of, the Constitu-
.. tlon in order to empholcnize :‘nother section,          unless there
   Is such uncertainty       in the MOT’13of a given section .of the
   Constitution    00 to require the courta to h6J.d that ,ouch a
   provision    ia unintelligible,      and, Lhcrcfore,     void.
               The language of ‘Subsection      (a) of Section 20 of:
 Article    XVI of this Amendment to the Conatitutlon          is plain
  and not subject to judicial        construction.    The command
  thorc given ta the Legislnfurc        to define the term “open sa-
  loon” 3.u as much a part ol the Constitution          ,na tho &hcr
  provisions    of that amondmcnt. Thercforo,        it is not the
  function of the courts or of the Attorney Gcncrbl to spec-
  ulate   upon the Pcaoonu or motive which mny have actuated
  the LcgLrjlnturc in eubmlttin~:      thi:, nmcndmcnt to the vote
  of ‘the pcoplc in the language contained in the quoted Scc-
  tion,    The Ic~;lr~lr~turo  could ~IRVCdefined    the term “open
  saloon” in the joLnt rcaolution         which nubmi.ttod this Amend-
 mcnt to the gc0p1.c~ Th,cfdid not do so, and II; was the
  province of the votcro of the State, if thoy ARMfit ho to
  do, to rcjcct     the nmcndment on that or n,ny othc:r ground
 ,thnt may have nctuatcd them in castlnfi thc1.r votes.           The
  pcoplc,   olonc, have power in ouch CRBCO, and their act in
  adopting the Coti:;titu~Ll.ou    or an smendmcnt to the Constitu-
  tion is the suprcmc law of the land, sevc only where it
 may conflict     with the Conatituti,on OP the United States,
  and is binding al;l.kc on all. departments of the State.
Honorable   W. D. Bradfield,     Page 8 (O-1708)

    In $4 Tex. Jur.,    at page 421,     it   is said:
          “The pronouncements of the Constitution
    are imperious,  supreme and paramount; -.and



    -----
    pie wh-ich$??-in~~~ct~        with the Constitution
     is void.” (Italics    ours.)
          The above quotation from Texas Jurisprudence
is but an epi.tome of the decisions   of our appellate
courts, both clvi~l and criminal,   on this subject.
            An enlightened  iinderstanding of, and implicit
obedience to the plain mardates      of the Coastitution,    in-
cluding all amendments thereto,      are essential    to the
preservation    of the American form of government.       Hence,
it must,   until changed in the constitutional      way, over-
ride varying popular opinions and contrary individual
desires.
           In the rather recent case of Travelers Insurance
Company vs. Marshall, 124 Tex. 445, 76 S.W. (2d) 1007,
Cureton, C-J., speaking for the Supreme Court, gave judi-
cial utterance to most of what has here been said.      And
first  among the many authorities  cited by Judge Cureton
in one part of the opinion in t.hat case is that of Stock-
ton vs. Montgomery, Dallam’s Decisions,    p. 473, which was
rsnd,ered in the ear1.y days of the Repuhl.fc, and from
which we briefly  quote:

             “What is the consistution?         It is the
     basis on r;hich the government res.ts, the author-
     ity for all. law; and is the commission under
     which the legislature,      the executive     and judiciary
     act,    It is permanent and n.ot influenced by the
     temper of the ti.mes. Whatever the collisions            of
     opposi.te interests,     the virulence     of parties and
     the conspiraci.cs    of corruption,     puh1.i.c robbery
     and. treason,   it  continues   like   the  Himmaleh or
    .the Andes,    amidst  and  above   the  storm;   the natio!l’s
     destiny dependent upon its subsistence,            . .‘I
            In the case of Cal.dwell. vs.       Crockett, 68 Tex. 323.,
4 S.W. 607, Stayton,   J., speaking for         the Supreme Court said:
            “It is urged that the acts of August 7,
     1876, April    22, 1879, and April 2, 1883, are
     unconstit ut ional,  In that they are retroactive
        Honorable   \:T. D. Bradfield,    Page 9 (O-1708)

        in character,   and create demands where none
        before existed.    That the Constitution   com-
        manded the Legislature    to pass these laws,
        is a sufficient   answer to this claim.   Const.
        art. 16, Sec. 26. What the Constitution     com-
        mands,- cannot be unconstitutional."
                            _-            -
            The Legislature,' in defining the words "open
saloon", acted in obedience to the command of the people
as expressed by their vote in adopting the foregoing
constitutional   amendment, and the Attorney General has
no authority to annul that Act.
                It becomes unnecessary to answer the second
question       which you have propounded in your letter.
                                         Yours very truly
                                         /s/ Gerald C. Mann
                                         Attorney General of Texas

                                         /s/W.   F. Moore
                                         First Assistant Attorney,
                                         General
Diet.     to
FG.
  12-13-39




                                                          This Opinion
                                                        Considered and
                                                          Approved in
                                                            Limited
                                                          Conference
