                          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.
                                                          .    -   ‘.I-




Honorable L. Dewitt Hale, page 2 (WW-104)


         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
