180 S.W. 703 | Tex. Crim. App. | 1915
Lead Opinion
The sole question involved in this case is the constitutionality of what is known as the "Pool Hall Law," being chapter 74 of the Acts of the Thirty-third Legislature.
The law provides for a petition to the Commissioners Court, and the court is required by the law to order the election when the petition is *436 signed by the requisite number of voters; the law provides how the election shall be held, and how the result shall be declared. In fact, the law as passed by the Legislature is minute in all its details, and provides for everything that is necessary to be done and is mandatory in its provisions. The law then provides:
"When any such election has been held and has resulted in favor of the prohibition of the operation and maintenance of pool halls within the territory for which the election is held, any person who shall thereafter, within the prescribed bounds of said territory, operate or maintain a pool hall such as is defined herein shall be subject to prosecution, and on conviction shall be punished by a fine of not less than twenty-five and not to exceed one hundred dollars, or by confinement in the county jail not less than thirty days nor more than one year, and each day such pool hall or pool room is run shall be a separate offense."
It is thus seen that all the voters can do or determine is whether or not they will pass their county under the provisions of the law as enacted by the Legislature. This is an "option" given to the voters of each county by the law enacted by the Legislature and nothing more.
As said, there is nothing to pass on in this case other than the constitutionality of the law, — the agreement on file stating: "That said John Mode (relator) did operate a pool hall, as charged in the information, and unless said law is unconstitutional he is not entitled to the writ of habeas corpus." This question was before us in the case of Ex parte Francis, 72 Tex.Crim. Rep., and after a most careful and thoughtful consideration we upheld the validity of the law, Judge Davidson, however, entering a dissent. Since the rendition of that opinion our Supreme Court, in the case of Ex parte Mitchell, 177 S.W. Rep., 953, has held the law invalid. Judge Hawkins entering his dissent to such holding. The opinion of the majority of the Supreme Court base their holding on two grounds: "(1) That it amounts to a delegation by the Legislature of its own legislative power imposed upon it by the Constitution which it alone must exercise and which it may not commit to any other agency; (2) that it authorizes the suspension of a general law of the State by the voters of a county, namely, the statute licensing the operation of pool halls generally within the State, in violation of article 1, section 28, of the Constitution, which is, `No power of suspending laws shall be exercised except by the Legislature.'" Judge Davidson's dissent in the Francis case, supra, being also based upon these grounds.
As to the rule of law, that the Legislature can not delegate its power to either enact a law or suspend a law, we agree with the Supreme Court, and so held in the case of Ex parte Francis, supra, holding in that case, "if the Act in question delegated the power and authority to suspend a law of the State, or to enact a law, of course, it would be unconstitutional." So the difference in the opinions of the Supreme Court and this court is not whether the Legislature has the power to delegate its power and authority, in the particulars named, but by the law enacted by the Legislature, known as the "Pool Hall Law" has the Legislature *437 delegated its power to enact a law or suspend a law of the State? That court placed the construction on the law that it did do so, while we held it did not do so. Having the utmost respect for the ability of the members of the Supreme Court so holding and our senior judge, Judge Davidson, when this application was presented, we granted the writ and set it down for a hearing in order that we might again have the question presented by eminent counsel and that we might give it more careful thought and study. We regret that our Supreme Court has not as yet filed its opinion, giving its reasons why it thought a proper construction of the Act would show a delegation of the power and authority of the Legislature. In the short opinion filed there is a mere statement that they so hold, yet do not point out wherein the Act does do so, and neither does the dissenting opinion of Judge Davidson in the Francis case, supra.
Not being favored with their reasons for so holding, during our vacation just closed, we have studied the text-books and the decisions of all the other States in the Union, and we find not only is the great weight of authority with the holding of this court, that such an Act as the "Pool Hall Law" does not delegate the power and authority of the Legislature to enact a law or suspend a law, but ascertain all the text-books of any note so hold, and the courts of last resort of every State in the Union (with possibly one solitary exception) so hold, and we are confirmed in our opinion that the law in question does notdelegate the power and authority of the Legislature in either ofthe respects named, and that the law is valid.
It is true that some of the earlier decisions did so hold, but upon a more mature thought each of the courts so holding has receded from such conclusion and overruled their earlier decisions.
Those who contend that a "local option law" is a delegation of the authority and power of the Legislature to enact a law rely mainly upon the first case in which it was so held — Parker v. Commonwealth, 6 Pa., 307 — but the Pennsylvania Supreme Court thereafter overruled that case, and in the case of Locke's Appeal, 72 Pa., 494, in a clear and lucid opinion, point out the error in the Parker case, and so aptly discuss the question there and here involved, we copy at length from the opinion in the latter case. It holds:
"What did the Legislature, in this section, submit to the people, and what did they not submit? This is quite as clear as any other part of the Act. Each elector is to vote a ticket for license or against license. He is allowed by the law to say, `I am for the issuing of license,' or `I am against the issuing of licenses,' and thus to express his judgment or opinion. But this is all he was permitted by law to do. He declared no consequences, and prescribed no rule resulting from his opinion. Nor does the majority of the votes declare a consequence. The return of a majority is but of a mere numerical preponderance of votes, and expresses only the opinion of the greater number of electors upon the expediency or inexpediency of licenses in this ward. When this is certified by the return, the Legislature, not the voters, declare `it shall *438 (or it shall not) be lawful for any license to issue for the sale of spirituous liquors.' Thus it is perfectly manifest this law was not made, pronounced or ratified by the people; and the majority vote is but an ascertainment of the public sentiment — the expression of a general opinion, which, as a fact, the Legislature have made the contingency on which the law shall operate. When the law came from the halls of legislation it came a perfect law, mandatory in all its parts, prohibiting in this ward the sale of intoxicating liquors without license; commanding an election to be held every third year to ascertain the expediency of issuing licenses, and when the fact of expediency or inexpediency shall have been returned, commanding that licenses shall issue or shall not issue. Then what did the vote decide? Clearly, not that the Act should be a law or not be, for the law already existed. Indeed, it was not delegated to the people to decide anything. They simply declared their views or wishes, and when they did so, it was the fiat of the law, not their vote, which commanded licenses to be issued or not to be issued.
"Now, in what respect does a vote upon license or no license, in a particular ward or township, differ from a vote, whether a new township shall be continued or annulled; or from a vote to determine whether a seat of justice shall be continued where it is or be removed to another place; or from a vote for or against a subscription by a city to the stock of a railroad company; or from a vote of the people of a district for or against a consolidation of it with a city? Yet in all these instances (to which reference will be made hereafter) it has been decided that the determination of these questions by a vote of the people interested in them, and an enactment of law dependent the result of this vote, are not a delegation of the law-making power to the people, but a submission only of the expediency of the proposed measure. This is simply common sense, for in none of the instances did the Legislature commit to the people the making of the law, but merely the province of determining a matter important to wise and judicious legislation — something upon which the Legislature deemed it proper its own act should wait, and then should operate accordingly. The wit of man can not draw a well grounded distinction between the result of a vote upon license in a township, and the result of a vote upon the existence of a township, and the removal of a courthouse, or a subscription to stock, or the consolidation of an outlying district with a city.
"The Legislature in the Act of 1871 have given to the people alaw, not a mere invitation; needing no ratification, no popular breath to give it vitality. The law is simply contingent upon the determination of the fact, whether licenses are needed, or are desired in this ward. And why shall not the Legislature take the sense of the people? Is it not the right of the Legislature to seek information of the condition of a locality, or of the public sentiment there? The Constitution grants the power to the Legislature to legislate, but it does not confer knowledge. The very trust implies that the power should be exercised wisely and judiciously. Are not public sentiment and local circumstances just subjects of inquiry? A judicious exercise of power in one place may *439 not be so in another. Public sentiment or local condition may make the law unwise, inapt, or inoperative in some places, and otherwise elsewhere. Instead of being contrary to, it is consistent with, the genius of our free institutions, to take the public sense in many instances, that the legislators may faithfully represent the people, and promote their welfare. So long, therefore, as the Legislature only calls to its aid the means of ascertaining the utility or expediency of a measure, and does not delegate the power to make the law itself, it is acting within the sphere of its just powers.
"It is urged that Parker v. Commonwealth, 6 Barr, 507, decided the question before us. That case was overruled soon after it was decided, not in express terms, it is true, but its foundation was undermined when it was held that laws could constitutionally be made dependent on a popular vote for their operation. The reasoning in Parker v. Commonwealth is fallacious, in assuming the fact that there was a delegation of legislative power. There is much in the opinion well and ably said. The first eight pages may be passed over, and we are brought then to the marrow of the argument, which is contained in the following sentences: After a summary of the Act of 1846 Justice Bell proceeds to say, that as a statute it `depends for its validity and binding efficacy, within the several counties named in it, upon the popular vote of designated districts.' `Possessing no innate force, it remains adead letter until breathed upon by the people, and called into activity by an exertion of their voice in their primary assemblies.' `If a majority within a particular district should vote negatively upon the question yearly to be submitted to the people, the Act as a statute has no existence.' `If a majority of the votes be cast in the affirmative, then the Act is to takeeffect as a statute.' `It operates not proprio vigore, but, if at all, only by virtue of a mandate expressed subsequently to its enactment, in pursuance of an invitation given by the legislative bodies.' `As it left the halls of legislation it was imperfectand unfinished; for it lacked the qualities of command and prohibition absolutely essential to every law.' I have italicised the portions which show the thought of the opinion and evince the assumption on which the argument rests. If we admit the fact that the law now before us was of this character, an imperfect and unfinished act, a mere invitation to the people to issue their subsequent mandate, and to breathe into it all its vitality, and thus give to it all its validity and binding efficacy as a law, we might have to concede the conclusion that there was a delegation to the people of the power to legislate. But it is beyond cavil that when the Act of 1871 left the halls of legislation it was a mandatory law in all its parts, and the only thing committed to the people was to vote for or against the issuing of licenses, and thereby supply the evidence of expediency. It acts proprio vigore, and is called into existence by no subsequent popular mandate. By its command the sale of liquors is forbidden, the popular vote is taken, and its effect declared. This popular vote is but the law's appointed means of determining a result, which the law enacts, in an alternative form, shall be the contingency of its operation. *440 The law did not spring from the vote, but the vote sprang from the law, and the law alone declared the consequence to flow from the vote. The assumption that the Act is not a law, till enacted by the people, is the foundation of the argument, and with its fall the superstructure vanishes. The character of this law is precisely that of hundreds of others, which the legislative will makes dependent on some future act or fact for its operation. To assert that a law is less than a law because it is made to depend on a future event or act, is to rob the Legislature of the power to act wisely for the public welfare, whenever a law is passed relating to a state of affairs not yet developed, or to things future, and impossible to be fully known. Such an assertion attacks even the moral government of the Creator. God breathes into His creature the power of judgment and discretion, and then declares to him in His law: `As you determine your act, so shall be the consequence.' The law is active and operates only when man determines. Does man or God make the law?" See also McGonnell's License, 209 Pa., 327.
Some who contend that the local option law is a delegation of the power of the Legislature to suspend a law, as well as a delegation to enact a law, cite the case of Ex parte Wall,
"The opinion in Ex parte Wall,
"In People v. Nally,
"It thus appears that it is now settled in this State, as it is generally elsewhere, that the rule prohibiting the delegation of its legislative powers by a State Legislature, does not necessarily prohibit a conditional statute, the taking effect of which may be made to depend upon such a subsequent event as its approval by the electors of the locality specially interested. (See Cooley on Constitutional Limitations, pp. 163 to 165 and 171, 172.) It is said on the pages last referred to: `It would seem, however, that if a legislative Act is, by its terms, to take effect in any contingency, it is not unconstitutional to make the time when it shall take effect depend upon the event of a popular vote being for or against it — the time of its going into operation being postponed to a later day in the latter contingency. It would also seem that if the question of the acceptance or rejection of a municipal charter can be referred to the voters of the locality specially interested, it would be equally competent to refer to them the question whether a State law establishing a particular police regulation should be of force in such locality or not. Municipal charters refer most questions of local government, including police regulations, to the local authorities, on the supposition that they are better able to decide for themselves upon the needs, as well as the sentiments, of their constituents, than the Legislature possibly can be, and are, therefore, more competent to judge what local regulations are important, and also how far the local sentiment will assist in their enforcement. The same reasons would apply in favor of permitting the people of the locality to accept or reject for themselves a particular police regulation, since this is only allowing them less extensive powers of local government than a municipal charter would confer, and the fact that the rule of law on that subject might be different in different localities, according as the people accepted or rejected the regulation, would not seem to affect the principle, when the same result is brought about by the different regulations which municipal corporations establish for themselves in the exercise of an undisputed authority.' And on pages 173 and 174, while admitting that there have been some decisions to the contrary, the learned author says: `Such laws are known, in common parlance, as local option laws. They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary power of the municipalities to make by-laws and *443 ordinances, is, nevertheless, within the class of police regulations, in respect to which it is proper that the local judgment should control.'
"On the question whether a law relating to the retailing of intoxicating liquors relates to such a subject that its taking effect in any particular locality of the State may be made to depend upon a favorable vote of the electors, without involving a forbidden delegation of legislative power, the decisions are practically unanimous. This is so declared in Joyce on Intoxicating Liquors, secs. 368 and 371. The following decisions sustain this view, viz: State v. Wilcox,
"It is claimed that the Act gives the electors of the specified districts the power to suspend provisions of general laws of the State, such as, in the case of cities and towns organized and existing under the general Municipal Corporation Act, provisions authorizing the licensing of the traffic in alcoholic liquors for purposes of revenue and regulation, and in the case of portions of supervisor districts outside of cities and towns, provisions of the County Government Act of the same character. This claim rests on the same basis as that of there being a delegation by the Legislature of its legislative power.
"As we have shown, there is no delegation of legislative power to the electors. It is the Act enacted by the State Legislature that suspends the provisions referred to, and not the vote of the electors. As we have seen, the Legislature has simply enacted a law applicable to the whole *444 State, which in substance and effect prohibits the sale or distribution of alcoholic liquor in any of the districts created by the Act where, twenty-five per cent of the electors insisting on an official expression of opinion thereon, a majority of the electors are not in favor of such traffic. The Act constitutes a declaration by the State Legislature that such traffic is inexpedient in any such district where such a large proportion of the people are opposed thereto, and denounces such traffic under such circumstances as a crime."
Maize v. State,
Sometimes some of the decisions of Iowa are referred to as sustaining the contention that a local option law is a delegation of legislative power. But the Iowa Supreme Court places no such construction on these decisions. In the case of Eckerson v. Des Moines,
In State v. Forkner,
The case of Barto v. Himrod,
Delaware is also often referred to as sustaining the proposition that a local option statute is unconstitutional, in that it is a delegation of the legislative power, and the case of Rice v. Foster, 4 Har., 479, is cited as so holding, and is one of the cases that caused a seeming conflict *446
in the earlier decisions. However, the Delaware court just about the time they rendered the above decision, held a statute valid which authorized a vote to be had in the various communities to determine whether or not a tax should be levied for school purposes. (See Steward v. Jefferson, 3 Har., 335.) If submitting the matter to a vote was a delegation of legislative power in one instance, it certainly was in the other, and vice versa, because there was no more warrant in their Constitution for holding one election than the other. However, the Delaware Supreme Court has in recent years had the question before them again, and after calling attention to a change in their Constitution, which rendered unnecessary the discussion of the opinion in Rice v. Foster, supra, that court holds in State v. Fountain, 69 Atl. Rep., 926, in passing on an Act providing for submitting to a vote of the qualified electors of the several districts of the State the question of whether the manufacture and sale of intoxicating liquors should be licensed or prohibited: "The police power, which is exclusively in the States, is competent to prohibit the sale and manufacture of an article of commerce, which they believe to be pernicious in its effects, and all measures of restraint or prohibition necessary to affect the purpose are within the scope of that authority. There can be no distinction in principle in the application of the Federal Constitution to a prohibitory statute and to a local option statute; the one being a direct and express prohibition of the sale of intoxicating liquors, and the other a conditional prohibition thereof, the condition being a result of a vote to be taken upon the question. It can be said, therefore, as the result of the examination of many authorities, that a local option statute, such as the one in question, is not obnoxious to any provision of the Constitution of the United States." Citing Boston Beer Co. v. Massachusetts,
The above are the cases principally relied on by those contending that a local option law is a delegation of legislative power, and it is seen that in each and every instance they are no longer followed in the States where rendered, but each has been distinguished, discredited, or specifically overruled, and in each of the States, Pennsylvania, California, Iowa, Indiana, New York and Delaware, local option laws are sustained, and held not to be a delegation of legislative authority and power to either enact a law or to suspend a law. But we did not stop with this investigation, but went to the reports of each State in the Union, and found that the various States were unanimous (with one possible exception) in sustaining such laws. And we give in brief form the holding of each of the other States:
Alabama — In State v. Montgomery, 59 So. Rep. (Ala.), 298, the Supreme Court of Alabama holds: "It is urged that the Parks bill and Smith bill delegate to the people legislative power, because they hinge the issuance of license to sell liquor and the establishment of dispensaries, according to the preference of the electorate, upon authorization *447 or legalization of the sale thereof by the vote of the people. In short, the contention is that the vote of the people and not thelaw, authorizes — legalizes — the sale. We would prefer out of deference to counsel to find in this contention something more than a mere play of words, but we are unable to do so. The italicised terms must be referred to the legislative purpose, to be read from these intimately related laws. The issues submitted to the electorate and the unequivocal provision of the consequences of the choice by the electorate, favorable to the restoral of the manufacture and traffic to the county voting thereon, demonstrate that no legislative power, no commission to the electorate to make law was intended or effected. All the electorate can do under these laws (as respects the displacement of an existing order of things when the election is held) is to choose whether to pass their county under the laws already then written. No court could, under acts employing as these do, the terms discussed, possibly attain any other conclusion."
In Davis v. State,
Arkansas — In the case of Boyd v. Bryant,
Arizona — In Thalheimer v. Board of Supervisors of Maricopia County, 93 Pac. Rep., 1129, the Supreme Court of Arizona holds: "The only question for our consideration is the validity of the local option legislation as embodied in title 43, Rev. Stats., 1901. That title provides that upon a petition being filed with the board of supervisors, signed by a certain number of voters, an election shall be ordered, etc. The contention of appellant is that the Act is invalid for the reason that the Legislature has attempted to delegate its power. The legal conflict over the local option laws in various States has centered upon the question whether they in fact involve a delegation of legislative power, and the overwhelming weight of authority is that they do not. We content ourselves with calling attention to two recent decisions in which the authorities are collated and commented upon. *448
In re O'Brien,
Colorado — In Schwartz v. The People,
Connecticut — In the case of State v. Wilcox,
Florida — In Cotton v. County Commissioners of Leon County,
In State v. Railway Co.,
In State v. Sammons, 57 So. Rep. (Fla.), 199, the Supreme Court of Florida, in speaking of an Act of their Legislature, says: "When the requisite vote was cast it afforded the contingency upon which the *449 Act by its terms became effective." Its validity was sustained, and held not to be a delegation of legislative authority and power.
The statutes of Florida provide "that it shall be the duty of the board of county commissioners of each county in the State, upon the presentation to said board at a regular or special meeting thereof of a written application asking for an election in the county in which said application has been made, to decide whether the sale of intoxicating liquors, wines or beer shall be prohibited therein, and signed by one-fourth of the registered voters of said county, to order an election in said county, not oftener than once in every two years, to decide whether the sale of intoxicating liquors, wines and beer should be prohibited in said county," etc. This statute has been upheld, and is now in force in that State. Arpen v. Brown,
Georgia — In the case of Caldwell v. Barnett,
Idaho — In 1909 Idaho passed a law authorizing counties, etc., to vote on whether the sale of intoxicating liquors should be prohibited in the respective counties. The Supreme Court of that State, in the case of Gillesby v. County Commissioners,
Illinois — In People v. McBride,
Kansas — In Cole v. Dorr,
In Burlingame v. Thompson,
Kentucky — The Supreme Court in Commonwealth v. Weller, 14 Bush Repts., 218, holds an Act prohibiting the sale of intoxicating liquors in a certain county, and providing that it shall take effect upon ratification of the majority of the voters of the county, is constitutional. The taking effect of an Act of the Legislature may be made to depend upon the result of a popular vote of a county, since in such a case the people are not called upon to decide at the polls whether the Act authorizing the vote is a law, but whether or not they will accept its provisions.
Again in Anderson v. Com., 13 Bush, 485, the Kentucky Supreme Court holds a local option law referring it to the popular vote of a municipality whether licenses to sell liquor shall be granted or refused altogether is constitutional and valid; the question is one of local police power, and may constitutionally be left to the decision of the County Court, municipal authorities, or the qualified voters of a city or town, or court district. Gayle v. Owen County Court,
Louisiana — In the case of Garrett v. Aly, 47 La. Ann., 618, the Supreme Court holds: Louisiana Act 76 of 1884, by which the Legislature declared that the vote or decision of the people of a parish shall control the sale of spirituous liquors, is within the constitutional power of the Legislature.
Massachusetts — In the case of Commonwealth v. Bennett, 108 Mass., *451
27, the Supreme Court held: The Massachusetts statute of 1870, chapter 389, which provides that the inhabitants of any city may annually vote upon the question as to whether any person shall be allowed to sell intoxicating liquors, and in the event of such vote being unfavorable, the sale of such liquors in any such city or town shall be prohibited, is not unconstitutional in that it delegates legislative power. That court reannounces the rule in Com. v. Marlin,
Maine — In Fannin et al. v. Commissioners of Arostock County, 82 Atl. Rep., 545, the Supreme Court of Maine was passing on an Act of the Legislature of that State which left to the voters of the county the determination of a change in county lines, and the location of the registrary office. It was held not to be a delegation of legislative power, although no specific authority was found in the Constitution for so doing, it being a law to become effective upon the contingencies named.
Maryland — In the case of Fell v. State,
Michigan — The Supreme Court of Michigan in Floeck v. Board of Bloomingdale,
Minnesota — In State v. Cook,
Mississippi — In Schulhen v. Bordeaux, 64 Mississippi, 70, the Supreme Court of that State upholds the validity of local option laws. It says: "On the question of the right to make an Act of the Legislature to depend for its operation on a future contingency, argument was exhausted long ago, and the principle established by oft repeated examples and by adjudication in this State and elsewhere in great numbers, that this may be done without violating the Constitution. It is idle to talk of precedent and subsequent contingencies or conditions, between defeating the operation of an Act or putting it in operation. There is no such deduction. It is merely fanciful and deceptive. It is for the Legislature in its discretion to prescribe the future contingency, and it is not objectionable on constitutional grounds that the popular vote is made the contingency. The purpose and scope of the Act is to take the popular sense whether or not the traffic shall be licensed by counties, and by vote, and it is valid and must be upheld." See also Board v. Davis, 59 So. Rep. (Miss.), 811.
Missouri — In the case of Maggard v. Pond, 93 Mo., 606, the Supreme Court of that State holds the Missouri local option Act of 1907, permitting the majority of the voters in a county, town or city to determine whether the sale of liquors shall be prohibited and licenses refused thereon, was properly passed by the Legislature in the exercise of its police power, and the same is not unconstitutional as delegating legislative power to the people. See also State v. Moore, 107 Mo., 78; State v. Dugan, 110 Mo., 138; State v. Watts, 111 Mo., 553; State v. Handler, 178 Mo., 36; State v. Harp, 109 S.W. Rep., 578.
In the case of City of Tarkin v. Cook, 120 Mo., 1, the Supreme Court of Missouri says: "Keepers of billiard tables are not recognized by the State as exercising a useful occupation. They are subject to the police regulation of the State and by cities and towns granted them by the State. They are prohibited from allowing minors to play on their tables. Villages may prohibit them altogether under section 1672 of Revised Statutes. Public billiard halls are regarded by many as vicious in their tendencies, leading to idleness, gambling and other vices. Each municipality can best determine for itself to what regulation they should be subjected."
Montana — In the case of In re O'Brien,
In Evers v. Hudson,
Nebraska — In Cole v. Village of Culbertown, 86 Neb., 160, the Supreme Court holds: "The Legislature has full power to grant authority to villages to license, regulate or prohibit billiard halls, pool halls, or bowling alleys within the limits of such village." The same principle of law is reannounced in State v. Howard, 96 Neb., 278.
In State v. Ure, 135 N.W. Rep., 227, the Supreme Court of Nebraska holds: On the general subject of the powers of the Legislature to submit to the electors of local subdivisions of the State, the question whether they shall adopt or reject, as applying to such subdivision, the provisions of a general law, many cases are cited in 8 Cyc., 840, note 17. In this State so far as has been brought to our attention, the right of the citizens of a county to vote upon the division of the same, or the herd law, or upon the question of whether bounties should be paid by the county for the killing of wild animals, has never been questioned. We conclude, therefore, that it was within the power of the Legislature by general law to allow the electors of all cities in the same class to adopt or reject the commission plan of government.
Nevada — In the case of Warren, Relator, v. The District Court,
New Hampshire — In State v. Noyes,
New Jersey — In New Jersey local option laws are and have always been sustained. In the case of Paul v. Judge of the Circuit Court,
New Mexico — In Ex parte Everman, 18 New Mexico, 605, the validity of local option statutes was upheld by the Supreme Court of New Mexico. That court says: The constitutionality of "local option" legislation is no longer an open question in American jurisprudence. While some of the earlier cases, it is true, held such laws unconstitutional and void, because based on a contingency, and, in effect, delegated legislative powers to the people, there is today no State holding such laws invalid or that it is a delegation of legislative authority, with the possible exception of Tennessee (citing Wright v. Cunningham,
North Carolina — In the case of Cain v. Commissioners,
North Dakota — In Territory v. O'Connor, 5 Dak., 397, the Supreme Court of Dakota held: "That chapter 70, Laws 1887, providing for the prohibition of the sale of intoxicating liquors in the several counties by local option is not subject to the objection that it is a delegation of legislative power. Such a statute is of a police nature, and rightful subject of legislation within the power conferred by the organic law, and may be left to each county to determine when it shall be enforced therein. See also Sobah v. Cormack, 117 N.W. Rep. (N. Dak.), 125.
Ohio — In Gordon v. State, 46 Ohio, 607, the Supreme Court holds: The Ohio local option Act of March 3, 1888, providing that the vote of the township shall determine whether or not the sale of liquor shall be forbidden therein, is not in violation of article 2, section 26, of the Constitution requiring that all laws of a general nature shall have a uniform operation throughout the State, and is not an unlawful delegation of legislative power.
Oklahoma — In Cotteral v. Barker, 126 Pac. Rep., 213, the Supreme Court of Oklahoma holds: "In the case at bar the Legislature has, by general law, provided that cities adopting charters may fix the term of office of the members of the school board; and we do not think this an unconstitutional delegation of legislative power, because the Legislature still exercises a complete control over the public school system of the entire State. This system is in harmony with the general policy of the State relative to municipal charters (submitting to a popular vote of the territory affected) and the larger measure of self-control guaranteed by the laws of our Legislature.
Oregon — In the case of Fouts v. Hood River, 46 Ore., 492, the Supreme Court of Oregon holds: The single question presented in this case is, whether what is known as the "local option Act" is constitutional. It is urged by appellant that it is not, for the reason that by its terms it is made to take effect, if at all, upon the popular vote of the locality or localities within which it is sought to have it applied or become operative. Each elector is to vote a ticket for license or against license. But this is all he is permitted by law to do. He declared no consequences and prescribed no rule resulting from his opinion. Nor does the majority of the votes declare a consequence. The return of a majority is but a mere numerical preponderance of votes, and expressed only the opinion of the greater number of electors upon the expediency or inexpediency of licenses. When this is certified by the return, the Legislature, not the voters, declare it shall (or it shall not) be lawful for any license to issue. Thus it is perfectly manifest this law was not made, pronounced, or ratified by the people. When the law came from the halls of legislation it came a perfect law, mandatory in all its parts, etc., citing many authorities. See also State v. Kline, 90 Ore., 426.
Rhode Island — In State v. Arseno,
South Carolina — A number of years ago before the "Dispensary Law" of South Carolina was passed the Legislature passed a law prohibiting the issuance of license to sell intoxicating liquors outside of incorporated towns, and in the law provided, upon petition being presented, the council of any such incorporated town an election should be held to determine whether or not licenses should be granted in such incorporated town. It was a local option statute and was upheld by the Supreme Court of South Carolina in Black v. Walker,
South Dakota — The Supreme Court of South Dakota in Ex rel. Crothers v. Barber,
Utah — In Peterson v. Peterson et al.,
Vermont — In the case of Bancroft v. Dumas,
Virginia — In Savage v. Commonwealth,
Washington — Some of the earlier decisions of Washington, when a Territory, are sometimes referred to as holding that "local option statutes" are unconstitutional in that such laws are a delegation of legislative authority, but when read and analyzed they do not so hold. The Supreme Court of that State in the case of State v. Tausick, 116 Pac. Rep., 631, 35 L.R.A. (N.S.), 802, has put the matter at rest in that State, and specifically holds: "Appellant contends the Act violates section 1, article 2, of the State Constitution, in that it is an unwarranted delegation of legislative power. The rule is well established that a statute does not delegate legislative power so long as it is complete in itself when it has passed the Legislature and has been approved by the Governor, even though it is left to some local body to determine whether and when it shall go into operation."
In State v. Story,
West Virginia — In the case of Ruther v. Sullivan,
Wisconsin — In Adams v. Beloit,
In State v. Frear,
Wyoming — Wyoming, in so far as we have been able to ascertain from an examination of the reports of its courts of final resort, has never had before it the question of whether the Legislature may enact a law giving to the people of the various counties the right to decide by popular vote whether or not they desired to avail themselves of the provisions of the said Act and secure the benefits accruing therefrom, but they have decided that the Legislature may by general law confer upon municipalities, by action of the city council, the right to tax and license liquor dealers and similar occupations, and to regulate them by ordinance, and provide that the city council may determine whether or not license shall issue. (State ex rel. v. City Council, 7 Wyoming, 417.) The laws of that State prohibit license to issue outside of incorporated towns. And in numerous instances have held that conditional legislation is not unconstitutional.
In Arbuckle v. Pflaying,
The Constitutions of these various States are practically the same as that of Texas in so far as legislative authority and power is concerned. The powers of government are divided into three departments — legislative, executive and judicial, the legislative being given the law-making power.
The rule in the Federal courts is tersely stated in Weil v. Calhoun, 25 Fed. Rep., 865: "It is competent for the Legislature of a State to *460 pass a law to take effect only on the happening of a certain event, and an Act prohibiting the sale of spirituous liquors in a State, excepting certain counties from the operation of the Act and providing that the law should only go into effect in any county after the people by popular vote had so decided, is within the legislative discretion and is not delegating the powers of the Legislature to the people of the counties."
In Union Bridge Co. v. United States,
It is thus seen that in every State in the Union with the possible exception of Tennessee, the courts of final resort now hold that a local option law, a law which leaves to the voters of a county, or other subdivision, the question of whether or not they will avail themselves of its provisions, or pass themselves under the operation of the law, is not a delegation of the power and authority of the Legislature either to enact a law or to suspend a law. In Tennessee, in the case of Wright v. Cunningham,
*461
This brings us to the discussion of the decisions of our State, and we will first discuss the two cases cited by our Supreme Court in the majority opinion in Ex parte Mitchell, supra. The case of Brown Cracker Co. v. City of Dallas,
In Potter's Dwaris Statutes, page 189, it is said: "If one statute prohibits doing a thing, and another statute be afterwards made whereby a forfeiture is inflicted upon the person doing the thing, both are considered as one statute." See also Endlich on Interpretation of Statutes, sec. 183. *463
Now, suppose both section 8 of article 7355 of the pool hall law had been enacted at the same time and as a part of the same Act, and read: There shall be levied and collected from every person pursuing the occupation of running a pool table the sum of $20, and then followed this up with the provisions of chapter 74 of the Acts of the Thirty-third Legislature. Would there or could there have been any contention that one part of the Act suspended or repealed the other part? We do not think so, and all the authorities hold, that as they both deal with pool halls (the same subject) we shall read them together as a connected whole, and give force to the legislative intent. This is a sane, common-sense construction of the laws on this subject, and one upheld by all the text writers, and by the decisions of our Supreme Court, and of this court, and by the decisions of all the States from which excerpts are hereinbefore copied. None of them ever held that a local option law suspended a license law, except Wall v. State, supra, which was specifically overruled in the case of Ex parte Beck by the California Supreme Court.
The only other case cited in the opinion of our Supreme Court in the Mitchell case is that of Swisher v. State,
If those were the terms of that Act we might agree with the holding that it was unconstitutional, but we have no such Act and no such provision in the pool hall law. The pool hall law is referred to no one to determine whether it shall become law, but the Legislature enacted its provisions as the law of the land, and it remains the law whether a vote is ever held under its provisions or not. The rights and privileges given by this law remain and can be taken advantage of whenever its provisions are complied with. If it is claimed the Act being passed on in the Swisher case was "not referred to the voters for ratification before it became a law," then these judges misconceived its provisions, doubtless by reason of the fact that it had been repealed, *464 and as they say, it was not necessary to give to it elaborate investigation. But should it be contended that the court in that opinion intended to hold that a law which left it optional on the territory to be affected whether or not its provisions would be taken advantage of, was a reference for ratification, then our Supreme Court has held to the contrary in a number of cases since the rendition of that opinion. In the brief filed by the Attorney General in that case he cited cases decided by the courts of New York, Pennsylvania, Delaware and Michigan. It is enough to say that no such rule of law prevails in either of those States at this time, but in every instance where it had been held that a local option law was a delegation of power to enact a law, such holding and each opinion cited has been overruled by the courts of the States named, and it is now the rule in these States, as well as all other States in this Union, that a law enacted by the Legislature, complete in all its details, simply giving, by the terms of the law, an option to the various counties, or the people of the designated districts, the privilege of determining whether or not they will pass themselves under the provisions of the law, is not a delegation of legislative power and authority, and is violative of no provision of the Constitution. But as said in the Ex parte Francis case by this court, if the construction to be given the Swisher case is that it was then held it was a delegation of legislative power for the law to leave it optional whether or not its provisions and privileges would be taken advantage of, we would not follow it, and there gave our reasons for so holding, and our Supreme Court, in all the opinions rendered by it (prior to the opinion in the Ex parte Mitchell case) had repudiated such a rule of construction.
In the case of San Antonio v. Jones,
In Stanfield v. State,
In Johnson v. Martin,
In Werner v. City of Galveston,
In Orrick v. City of Fort Worth, 114 S.W. Rep., 681, the Court of Civil Appeals, in an opinion by Chief Justice Conner, held that an Act of the Legislature which submitted to the people whether or not they would accept the provisions of the law was not a delegation of legislative authority and power. In this case our Supreme Court refused a writ of error, thus affirming the opinion of the Court of Civil Appeals.
Many other cases decided by our Supreme Court so holding might be referred to, but we will not further do so, except to refer to the opinion of our Court of Civil Appeals in the case of Roper
Gilley v. Lumpkins, 163 S.W. Rep., 110, in which the validity of the present pool hall law is discussed and upheld, the court saying: "It can be safely said that the Act in no respect attempts to confer upon the electorate the law-making power of the Legislature. Every detail of the Act is complete, and the people may in no respect add to or take from its provisions, but are merely given the right to vote upon whether the law, as passed, shall be put in operation in the subdivisions named. The Act, in our opinion, is dissimilar to the law construed in State v. Swisher,
Thus we see that the opinions of the courts of last resort of every State in the Union (unless it be that of Tennessee) hold that a law which leaves it to the option of the people of the counties, as does our pool hall law, to determine whether or not they will avail themselves of its provisions is not a delegation of legislative power to enact a law and is not a delegation of power to suspend a general law of the State. And the decisions of our own Supreme Court are in thorough harmony with those decisions (at least since the rendition of the opinion in the Swisher case) until the opinion was rendered in Ex parte Mitchell. The opinion in that case is not only against the great weight of authority, but is against the rule of law as announced by all the eminent text writers, and against the rule of law as announced by the courts of last resort in every State in the Union, unless it be the Tennessee court, and as we have shown, the opinions of that court are in conflict. We have been told that Judges Lipscomb, Wheeler and Hemphill were eminent and able lawyers. This we concede, but it is apparent by their opinion they were not passing on what is termed a "local option statute" like our pool hall law, but if they had been they were no more eminent *466 nor able men than Judges Moore, Roberts, Coke, Willie, Stayton, Henry, Brown, Gaines, Williams and a number of other of our judges who have passed on the questions involved, and held them violative of no provision of our Constitution, and that such laws do not delegate legislative authority and power.
We should advert occasionally to the foundation of our government and the principles underlying it. When we were but colonies of England, the rule was that the king or those in authority were sovereign, and in them inhered all authority and power. But when our forefathers declared their independence and won their freedom, all authority and power theretofore invested in the king passed to the citizens of the colonies, and they became and still are the sovereign power. Each of the then thirteen colonies, or States, was independent of the other, and the people of each State in their collective capacity held the supreme power. They formed a union to protect themselves, and ceded certain powers in the Federal Constitution to the union government. All power and authority not ceded was reserved to the States and the citizens thereof. The Federal Congress can only pass such laws as the grant of power to the Union authorizes, but a Constitution of a State is not a delegation of authority and power. Authority and power to make laws inhered in the States, and the people thereof. A legislative body is the representative of this sovereignty, and their authority and power is as broad and as comprehensive as was that of the king in olden times, except in regard to such matters as were ceded to the Federal government, and except such limitations as the people of each State have seen proper to place upon their representatives in their State Constitution. If the people have placed no inhibition in their State Constitution, then the Legislature can act, and it is sovereignty speaking through their chosen representatives. Courts have no right to strike down laws enacted by the Legislature, no matter how unwise they may deem them, unless an inhibition can be found in the Constitution. We find no provision in our Constitution which inhibits the Legislature from passing a general law under and by virtue of which the people of the various counties may avail themselves of rights and privileges granted by the law. There is no such inhibition in the Constitution of this State, and we can not agree, by strained construction, to engraft such an inhibition. We entertain great respect for the ability of the men who rendered the majority opinion in Ex parte Mitchell, as well as the ability of Judge Davidson, who entered a dissent in Ex parte Francis, and for their legal attainments, but when we ascertain that their view of the law on any question is not only contrary to the opinion formed by us after mature thought and study, but is also in direct conflict with the opinions of the able men who compose the courts of last resort in every State in this Union, and in direct conflict with the rule of law as announced by such eminent law text-book writers as Judge Cooley, in his work on Constitutional Limitations; Mr. Black, in his works on Interpretation of Laws and Intoxicating Liquors; Mr. Freund, in his work on Police Power; Lewis' Sutherland on Statutory Construction; *467 Joyce, on Intoxicating Liquors, and other eminent men we might mention, we can not follow them in giving a strained construction to the Constitution, and must declare the law as we believe it to be, and as it is held to be not only by all the eminent law text writers of this day and time, but by all the courts of last resort in all the States in the Union.
The Legislature has made a violation of the law a criminal offense, and the Constitution of this State places in this court, and not the Supreme Court, the supreme and final jurisdiction in all criminal cases. It is to be regretted that the two courts of final resort have arrived at different conclusions as to the validity of this law. Had the Legislature made a violation of this law a civil case, as final jurisdiction in civil matters was given to our Supreme Court, we would bow to their opinion, but the Legislature did not see proper to do this, but instead made it a criminal offense, of which this court has final and exclusive jurisdiction. It was formerly held by our Supreme Court that they would follow the opinion of this court in matters of criminal law. In Commissioners Court v. Beall,
"We are of opinion that the questions certified belong to a class which fall within the peculiar jurisdiction of the Court of Criminal Appeals and in which this court should follow the decisions of that court. Every law must have its sanction; that is to say, its means of enforcement. Without such it can hardly be deemed a law. 2 Bouv. Law Dict., Rawle's ed., p. 145. The author cited says: `Sanctions are of two kinds, those which redress civil injuries, called civil sanctions, and those which punish crimes, called penal sanctions.' Id., 953. The local option laws of this State depend wholly for their enforcement upon the infliction of the penalties prescribed by the statute through the procedure provided for that purpose by our Code of Criminal Procedure. The prosecutions thereunder must be instituted and tried in the courts having criminal jurisdiction. Therefore we are of opinion that our local option statutes are strictly and essentially criminal laws, and as such primarily subject to the decisions of the criminal courts as to their validity and construction. Appeals lie in criminal cases to the Court of Criminal Appeals as the court of last resort. Their decisions are final upon the questions determined by them, and settle the law in purely criminal matters at least as to all inferior courts over which they exercise appellate jurisdiction. In like manner, the decision of the Supreme Court is final and authoritative over questions not involving the criminal laws. Such is the constitutional prerogative of the two courts. Neither is in any manner subordinate to the other.
"Yet there are criminal cases which may incidentally involve a question of civil law, and civil cases in which in like manner points of criminal law call for solution. For example, in a prosecution for theft, a question of the title to property may be raised; so in a suit to recover damages for false imprisonment, a question may arise as to the right *468 to make an arrest under the provisions of our Code of Criminal Procedure, which is a question of criminal law.
"Such being the jurisdiction of the two courts of last resort, and since under the rule of the common law the decisions of such courts are authoritative and controlling upon other courts, it occurs to us that when the amended judiciary article of our Constitution was framed and adopted — separating, as it does, the jurisdiction of the two courts of final resort by giving to the one jurisdiction of criminal cases only and to the other civil jurisdiction alone — it was not contemplated that there would result a conflict of decision in the two courts which there was no provision for reconciling. On the contrary, we are of opinion that it was considered, that, upon questions of criminal law which might arise in the Supreme Court, that court would bow to the decisions of the Court of Criminal Appeals, and that, upon those of civil law, the latter would accept the rulings of the Supreme Court. We think we may safely say that it has been the rule of this court, ever since the adoption of that amendment, to follow the construction placed upon the statutes embraced in our Penal Code and Code of Criminal Procedure by the Court of Criminal Appeals. The rule was followed in the case of Green v. Southard,
As long as both courts followed that rule of law there could be no conflict. But our Supreme Court seems to have departed from that rule in a case wherein they were authorized to issue an injunction in aid of the enforcement of the law by the criminal courts, and it is a matter about which we have no right to and do not complain. We merely call attention to it so that the Legislature may take notice of the matter and provide ways and means by which such conflicts may in future be avoided by providing for a tribunal whose adjudication will be final.
But, this being a criminal case, we feel that the Constitution has placed upon us the imperative duty to declare the law as we believe it to be. As said by Judge Davidson in Ex parte Combes, 38 Tex.Crim. Rep.: "It is to be regretted that courts of last resort, whose adjudications are final in matters coming before them, should disagree as to what the law is, or should be, in the same character of cases, or upon the same legal propositions. Were this a matter of personal discretion instead of one of high public duty, we might perhaps be justified in yielding our views, but under our Constitution, this court was created with final appellate jurisdiction in all criminal appeals, hence we can not, if we felt inclined to do so, shirk the responsibility imposed by the Constitution and laws of this State." When the matter comes before our Supreme Court again, if it does, we think that, taking into consideration the far-reaching effect of the decision, the court will give it most careful and mature thought, and *469
if so, we are inclined to believe and hope it will not adhere to its decision when it is ascertained that it is not only against the great weight of authority, but the practical unanimous opinion of the great jurists who occupy positions on the courts of final resort in all the States in this Union. If the opinion rendered by them in Ex parte Mitchell is to be adhered to by that court, then many of the laws on our statute books must fall. Our statutes authorize the citizens of towns and villages to vote on whether or not they will accept the provisions of the municipal corporation Act, and if a majority vote to place themselves thereunder, then all the provisions of the law apply; it authorizes a town or village, when having a sufficient population, to vote on whether or not they will accept the provisions of the statute relating to cities. Our statute authorizes a town, incorporated under the general incorporation Act, to vote on whether or not they will accept the provisions of law providing for a commission form of government. Our incorporation laws leave it optional with the citizens to decide whether they will accept the provisions of the law, and incorporate. If they do, then they are bound by the law. Many instances could be cited of "option statutes," and under some of them great property rights have been acquired, bonds, etc., have been issued by municipalities, and if the Legislature can not pass a statute and leave it optional whether or not those to be affected by it will accept its provisions, then all of our option statutes must be declared invalid, and great injury will be done. So great an injury should not be brought about by a court decision, when nearly all of the eminent jurists of this day and time entertain and express and hold that an option statute is valid. It is a rule, not only in this court and the Supreme Court, but one announced by all law writers, that if there is doubt as to the constitutionality of the law, the doubt must be solved in favor of its validity. It is only where the law is manifestly in violation of some provision of the Constitution that a court is authorized to declare it void. (Lytle v. Halff,
The relator is remanded. Relator remanded to custody. *470
Dissenting Opinion
It is not my purpose to review the opinions and extensive quotations therefrom found in the majority opinion. These cases are, in the main, from other States, and relate largely to legislative authority over municipal corporations, and the extent of such authority or policies in those States in regard also to the liquor traffic as developed under their constitutions and jurisprudence. For instance, take Ex parte Beck,
Again, I may repeat, there is to be observed a wide difference between general laws and local option laws. The general law can only be passed and vitalized by the legislative body. The local option law can only be vitalized by a vote of the people of the designated territory. The initiative and referendum are not in vogue in Texas as to general laws, nor can be unless the Constitution be amended as to so authorize. The pool hall Act is, in a sense, a general law, and is so held to be by Judge Harper. It is also a referendum Act and can operate under referendum elections. In fact, that it is a general law forms the basis of his opinion and conclusion. It is not a local option law, and, indeed, *474
can not be legally, as there is no constitutional warrant for its enactment as such a measure. Inasmuch as local option laws are provided by the Constitution, it follows that, if put into operation, they succeed all laws in conflict therewith. All the authorities in Texas so hold. This being true, when voted into operation they suspend and annul all laws in conflict with their provisions until the local option law is repealed or set aside at a subsequent election by a vote of the same people in the same territory who first placed it into operation. It is sacred from legislative repeal and invasion. Cases already cited settle this question. If such authority is not found in the Constitution toenact local option laws, it would seem to follow that if they areconstitutional as asserted by the majority, then such laws wouldbecome amendments to the State Constitution operative only in agiven or particular locality by the vote of such locality, and would, therefore, be binding as an amendment to the Constitution, in such territory, but only in such territory. It would not operate elsewhere and could not. There would be as many amendments, therefore, as the number of localities so voting, and each subject to abolition at the pleasure of each locality as the popular fancy dictates. Wherever the people have reserved the power to themselves to put into operation a law, whether it be the Constitution itself or some law provided for in the Constitution, it becomes as binding as the provisions of the Constitution itself, and having been passed as provided, it is safe from interference from any source except by a vote of the people. This would, therefore, clearly violate article 17 of the Constitution by the terms of which alone the Constitution can be amended, and this expressly so only by a vote of the entireState. The Constitution can not be amended by a vote of the justice precincts, counties, cities or towns, nor can these subdivisions amend, change or alter the law unless the Constitution expressly so authorizes. Elliott v. State,
If the pool hall law is constitutional, there must be specific power somewhere to be found which authorizes its creation and existence, and this must be found in the Constitution itself. If that power be found in the Constitution, then a favorable action upon the law by a vote of the people would be valid and necessarily would suspend all conflicting laws. If no such authority be found specially, then it must be relegated to the general power of the Legislature. If that body can so enact constitutionally such laws, these laws would necessarily suspend all other State laws inconsistent therewith without resort to referendum elections. It would also necessarily follow that these laws would be as binding as the Constitution itself, and irrepealable except by another vote in the same territory where enacted or vitalized. In each of such instances in such included territory there would be a different Constitution operative from that in all other precincts and portions of the State not so affected — not by the provisions of the Constitution itself *475 but by a general law of the Legislature. Such a proposition would be a legal anomaly, to say the least of it, and carries with it its own refutation. Harris' Ann. Const., pp. 209 to 212. In McDonald v. Denton, 132 S.W. Rep., 823, it was held that the Legislature alone has power to suspend the operation of general laws, and in exercising this power must make its suspension general but can not suspend general laws for individual cases or for particular localities, nor delegate such authority to local divisions to suspend such laws. Carefully reviewing this subject a great writer thus wrote and clearly states the rule: "If, however, no special authorization to submit a subject to the citizens is contained in the Constitution, the Legislature of the State is without power to call for a referendum on general State laws. To the Legislature the people delegated the law-making power, and it is not competent for it to redelegate its authority to any other body, nor even to pass it back to the people themselves. This is a well settled principle in American public law." If the pool hall law be a law at all, it is of a general nature to be made applicable to different localities by a vote of the people in those localities. In fact, its operation would seem to be an amendment to the Constitution applicable only to a given territory where the people so vote and this in the face of article 17 of the Constitution, as well as article 1, sections 28 and 29.
Again, it has been said, "As to the constitutionality or unconstitutionality of law-making by popular vote in and for States, excepting laws for counties, cities and local districts, there is today little difference of opinion. The general principle that a body acting under delegated authority can not redelegate its authority to some other person or body, is a well settled point in American law. Delegata potestas non potest delegari is a rule, the virtue of which no one disputes." Mr. Cooley says: "Where the sovereign power of the State has located the authority, there it must remain, and by constitutional agency alone the law must be made until the Constitution itself is changed. The power to whose judgment, wisdom and patriotism this high prerogative has been entrusted can not redeem itself of the responsibility by choosing other agencies, nor can it substitute the judgment, wisdom and patriotism of any other body for those to whom alone the people have seen fit to confide this sovereign trust." Constitutional Limitations, p. 137. "No power goes out of the State except by delegation. All power belongs to the State as much after delegation as before, and that delegated power must necessarily be used for the State by her substitutes and agents." Delegating sovereignty would be as manifest a solecism as delegating ownership to an agent, so in the latter case the agent becomes owner, as in the former the representation becomes sovereign, both cases being alienations or abdications unknown to legal or constitutional history. Delegation of sovereignty to a creature is an absurdity, only equalled by the absurdity of the transfer of allegiance. If sovereignty is transferable to the Legislature, the allegiance of the citizenship is equally transferable to the same body.
The basis of Judge Harper's opinion is that this has been changed *476
by recent decisions and to sustain himself quotes extensively from the decisions of appellate courts of other States. I believe that the opinion in the instant case, as well as the majority opinion in Ex parte Francis, is in conflict with the State Constitution and the entire jurisprudence of Texas. I do not think, however, the authorities cited by Judge Harper sustain his statement that the recent decisions go to the extent of holding that legislative authority can supersede constitutional provisions, nor do I believe these decisions held or intend to hold, and were not so written. Those decisions would hardly assert the proposition that a general law of the State can be superseded by local option laws, unless by express constitutionalauthority, whether those local laws be by local option methods or by city ordinances. In any event and however done, if legal, the local law would become superior to the general law andnecessarily in conflict. One law or the other must be the superior. The Legislature is, therefore, without authority to call for the referendum of general State laws unless authority be expressly granted in the Constitution. This was announced in Texas as early as the Swisher case,
It is further to be stated that local option provisions in the Constitution expressly recognize and endorse the doctrine enunciated in the Swisher case, supra; therefore, such local option laws as were desired were placed in the Constitution. Thus far only was the doctrine of the Swisher case impugned but such provisions emphasized the doctrine of that case. It was otherwise fully and completely upheld and endorsed by the Constitution. If the inherent power of the people can not prescribe a constitution of controlling influence and command over its agencies and place limitations on such agencies, such inherent power becomes a mockery. The agent would become superior to the principal; the creature to the creator; the Legislature over the Constitution. Inhering in the majority opinion is to be found another dangerous proposition of recent growth and late development in this State, towit: that everything can be done by legislative authority with a view to the interests of society.
A great writer and student of American representative form of government, with full knowledge of the underlying principles of individual liberty and citizenship, as constitutionally promulgated, has said that such a proposition is "an impious adage, which seems to have been invented in an age of freedom to shelter all the tyrants of future ages." This means, if the majority opinion is correct, that our Constitution, Bill of Rights and reserved and sacred guarantees of life, liberty and property can be brushed aside by legislative caprice and overturned by assuming original but unauthorized power. It means the abolition of representative government. It means that these reserved rights to our people shall no longer be respected, if it is thought the interests of society is involved. Under that view the citizen no longer controls his government, but the Legislature becomes supreme, and autocratic. The far-reaching consequences of the majority opinion, if it is to become the law in this State, may not be readily seen at first blush. If it is to be hereafter regarded as the law it is evident, first, that the Legislature will be superior to the Constitution, and omnipotent in all legislative matters despite the obligatory checks placed in the Constitution; second, *481 that local option is to be that rule of omnipotence, whether constitutional or not, for future government; third, paternalism to become the fixed rule with oppression the result; fourth, to reach that end socialistic theories are to be a controlling rule, and, fifth, the Constitution is to be no longer the rule in government. If the State law authorizes pool hall elections to suspend the tax laws, then why may not the same body authorize a suspension of all laws by the same means and by the same process? Would it not be, if they are correct, that the Sunday laws may be thus set aside by vote of a given territory. If not, why not? Why should not laws against bawdy houses, adultery, fornication, rape, seduction and incest be suspended by the same local option process? Is not the principle the same? If the popular idea can suspend this tax law by such election, it is certainly very far reaching in its destructive results upon our entire system of government.
There is another matter that I feel that I should mention; that is, the remarks or criticism of my brethren of the Supreme Court as manifested in their opinion in the instant case. They criticise that august tribunal for their recent opinion in Ex parte Mitchell. That the Court of Criminal Appeals and the Supreme Court may differ on any legal matter as to what the law may or ought to be may here be conceded. The Supreme Court is a court of last resort in final determination of questions of civil law. To decide such questions is an imperative duty and compulsory in its nature and its command. There may occasionally arise a matter where the line of demarcation as to jurisdiction may present itself on closely drawn lines, but this does not often occur nor does it for that reason authorize assumption of superiority over the Supreme Court. This is well understood by the courts as well as the bar and bench of the State. This court has recognized this in two recently decided cases, Ex parte Zacarro, the opinion by Presiding Judge Prendergast,
The statement that the Supreme Court alone had jurisdiction because it was a civil matter is sustained by the opinions of Presiding Judge Prendergast and Judge Harper in the Zaccaro and Mussett cases. Viewing these three cases in the light of what has been written by the Court of Criminal Appeals, it seems to me that this court has gotten itself in the attitude of deciding the question both ways, and within a very short period of time without even noticing the two prior decisions. If the Supreme Court only had jurisdiction to try an infraction of an injunction, they had the right to determine necessary questions involved, as a matter of fact and as matter of law. The only question involved in the Mitchell case, as in the other two cases, was disobedience of an injunction wherein all the parties had been enjoined for violating what my brethren have held to be statutes punishing criminally. If the Supreme Court had jurisdiction in the two cases first mentioned, it would follow, as night the day, that they had jurisdiction in the latter, and if the contempt was void for the stated reason in the Mitchell case, it was so in the other cases. If one was a civil case, they were all civil cases, and having acquired jurisdiction, that court had not only the right to determine the validity of the law under which applicant was held, but it was a duty. If they were criminal cases, the Supreme Court was without jurisdiction, and my brethren were wrong in their decision of the Zaccaro and Mussett cases.
I do not care to follow this question any further. I can not agree with my brethren in their proposition that the local option pool hall law is constitutional. I have written beyond my original purpose, and I feel that the opinion is so far-reachingly wrong that I ought to at least enter my protest, and for this reason have written. I might have cited many cases from other States to the effect that the Legislature can not authorize a referendum election on general State laws. This ought to be regarded as self-evident, and further, it is only when the Constitution authorizes such procedure that such local option elections can be justified or held. This is at least true in Texas, by the Constitution and the entire jurisprudence of the State. Our State has a well marked and fully developed line of jurisprudence and law on this question, and it is based on the Constitution of the State, and where the Constitution speaks the legislative body as well as the courts and executive *483 departments must obey. Texas will be controlled by her own Constitution, her own laws and her own jurisprudence, and will not subvert or overturn our jurisprudence and law — organic and settled — because some court in some other State has written contrary to what is our settled jurisprudence. We have not adopted initiative and referendum in Texas as part of our Constitution. The decisions of other States where they have such procedure does not obtain here, nor will the decisions of other States engraft upon Texas such doctrine as initiative and referendum. It can only be done by majority vote of the people of Texas placing it in their Constitution.
For reasons given I respectfully enter my dissent.
