Full opinion text
MORROW, Judge. Relator is under arrest charged with the sale of intoxicating liquors in violation of section 2 of the Act of the Thirty-fifth Legislature, which reads as follows: “The sale, barter, or exchange of spirituous, vinous or malt liquors, or medicated bitters capable of producing intoxication, except for medicinal, scientific, mechanical and sacramental purposes, are hereby prohibited within this State.” (Acts 35th Leg., 4th Called Session, chap. 24, p. 37.) He seeks release on writ of habeas corpus, insisting that this section of the Act of the Legislature is inoperative because in conflict with section 20 of article 16 of the Constitution, which reads: “The Legislature shall at its first session enact a law whereby the voters of any county, justice precincts, towns or cities (or such subdivisions of a county as may be' designated by the Commissioners Court of said county), may by a majority vote, determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits.” This clause, except the part in parenthesis, was incorporated in the Constitution adopted in 1876. The part in parenthesis was put in by amendment adopted in 1891. In June, 1876, the Fifteenth Legislature, in obedience to this provision of the Constitution, enacted a local option law providing for the holding of elections in the counties and subdivisions named, and providing that when at such an election the majority of the votes were cast “for prohibition” the sale of intoxicating liquors, except for medicinal and sacramental purposes, be absolutely prohibited within the prescribed bounds “until such time as the qualified voters therein may, at a legal election held for the purpose, by a majority vote, decided otherwise.” The Act also contained a provision to the effect that if prohibition carried, another election within the same limits should not be held within less than twelve months. 6am-mel Laws, vol. 8, p. 862. Prior to the passage of the Act of the Thirty-fifth Legislature mentioned, no effort was made to put absolute prohibition of the sale of intoxicating liquors in effect in the State, or any part of it, except by means of the local option law which, with certain amendments, is still in force, unless annulled by the Act in question, and during the forty years intervening since its passage such prohibition has been put in force by a vote of the people in localities embracing the greater part of the State. From what has been said it follows that the exact question here presented has never been before the courts. In numerous instances the construction of section 20, article 16, supra, in connection with the local option laws, has been involved and passed upon. Examples are Lewis v. State, 58 Texas Crim. Rep., 359; Ex parte Elliott, 44 Texas Crim. Rep., 577; Cross v. State, 49 Texas Crim. Rep., 437; Lawhon v. State, 2.6 Texas Crim. App., 101; Robinson v. State, 26 Texas Grim. App., 82; Dawson v. State, 25 Texas Crim. App., 670; Ex parte Fields, 39 Texas Crim. Rep., 55 ; Ex parte Rippy, 44 Texas Crim. Rep., 77; Adams v. Kelley, 17 Texas Civ. App., 479, 44 S. W. Rep., 529; Ex parte Pollard, 51 Texas Crim. Rep., 488; Ex parte Mills, 46 Texas Crim. Rep., 224; Schwartz v. State, 103 Texas, 119; County v. Beall, 98 Texas, 104; Fox v. State, 53 Texas Crim. Rep., 153; Keller v. State, 87 S. W. Rep., 669; Ex parte Brown, 38 Texas Crim. Rep., 303; Stalworth v. State, 16 Texas Crim. App., 345; Holley v. State, 14 Texas Crim. App., 507; Texas Brewing Co. v. State, 106 Texas, 121. It is obvious that section 2 of the Act, which prohibits the sale of intoxicating liquors, can not operate in territory where the local option prohibition law has been adopted by the people, unless we are prepared to abandon the settled construction given by. this court to section 20, article 16, of the Constitution. An example of this construction is found in the case of Dawson v. State, 25 Texas Grim. App., 670, wherein are announced principles which have so frequently been applied by this court that we deem it not amiss to reproduce, to some extent, the language used in that decision wherein Judge Willson, writing the opinion, said: “The extent of the power conferred upon the Legislature by section 20, supra, was to enact a. law enabling the qualified voters of the localities designated to determine, in accordance with such law, whether the sale of intoxicating liquors shall be prohibited within specified limits. Ho power was conferred upon the Legislature to prohibit the sale of intoxicating liquors, but such power was vested alone in the qualified voters of the localities named—such power to be exercised by them in the manner to be provided by the Legislature. It is only by a majority vote of the qualified voters of a locality that the sale of intoxicating liquors within the limits of said locality can be prohibited. . . . This will, this power on the subject, is absolute and exclusive in the qualified voters of the locality. . '. . If the power exists in the Legislature to deprive the locality of the right to have another election, for the period of two years, the same exists to deprive them of such right for ten, twenty or other number of years. . . . They, the qualified voters, enacted the law; it is their creature called into existence by their direct agency, and they alone have the supreme and exclusive power, by a majority vote, to repeal it. It is not within the power of the Legislature to add to or take from, or in any manner infringe upon the law as adopted by the will of the voters—or even, in our opinion, repeal it in that particular locality. Whenever the law has been legally adopted by any particular locality, the subject has passed beyond the domain of legislative action, so that a different law can not, without the sanction of the qualified voters of that locality, given in a legal manner, be imposed upon such locality. . . . Any other view, it seems to us, would invade the constitutional rights of the people of such localities and foist upon them a law which,.perhaps, they never would have adopted, a law with respect to which their ‘option’ had never been consulted-or ascertained; a law enacted not by them but by the Legislature, without constitutional right.” Deciding that an Act of the Legislature changing the offense of violating the local option law making it a felony could not be effective in a county that adopted the law while the offense was a misdemeanor, this court, in an opinion written by Judge Bamsey, after an exhaustive review of the subject, the decisions and legislative enactments, says: “The first time the question came before this court was in the case of Dawson v. State, 25 Texas Grim. App., 670. This decision was rendered by this court when composed of Judges White, Hurt and Willson. While it does not involve the precise question here raised, in principle, the rale there announced is conclusive of the question before us. . . . The decision in that case ‘has been many times questioned and often assailed, but has remained the settled rule of this court from that day until this, and has been in terms applied by the court to the very question here raised. . . .We have thus reviewed, at more length than might ordinarily seem éither desirable or necessary, the decisions of this court, which, for almost, a quarter of a century,/through many changes of the personnel of its members, have uniformly and without dissent held to the proposition that it is not within the power of the Legislature to impose upon a community which had theretofore adopted the local option law, penalties and forfeitures which did not exist at the time of such adoption, and which rule had many times, by line upon line, and precept upon precept, been enforced and established.” Lewis v. State, 58 Texas Grim. Bep., §51. Adverting to the Acts of the Legislature passed subsequent to the rendition of the opinion in the Dawson case, the court in the Lewis case states the conclusion that the construction of the Constitution therein had been adojffed by the Legislature. This rule of approval of judicial interpretation would likewise apply to thé re-adoption of the clause of the Constitution in 1891. Black on Interpretation of Laws, p. 32. There are many localities in the State which adopted the local option law at a time when, under its provisions, its violation constituted a misdemeanor. Others adopted it after the offense became a. felony with the benefit of suspended sentence. Under the rule established in the Lewis case, supra, and often since applied, prosecutions for the sale of intoxicating liquors are punished in some localities by fine and imprisonment ; in others by confinement in the penitentiary with the privilege of suspended sentence, and under the principles which are laid down in the Dawson case, supra, and of which Judge Bamsey, in the forceful language quoted, declares to constitute the settled rule of this court, the Legislature is without power to make in any of these instances the punishment for the sale of intoxicating liquors more severe without the consent of the people affected. The law in question, making the penalty a felony in all cases without the. benefit of suspended sentence, can not operate. The local option prohibition law provides that it shall continue in force “until such time as the qualified voters therein may, at a legal election held for the purpose, by a majority vote, decided otherwise.” The law in question puts no limitation upon the time it shall continue in force, and affords the voters in the locality no option to discontinue it. In these respects the people of the locality are deprived of rights which, according to the construction of the Constitution given by this court in the Dawson case, supra, and reaffirmed in the Lewis case and others therein cited, of which the Legislature has no right or power to deprive them. Such right, giving effect to the decisions mentioned, could be exercised only in the event that the law in question should be construed as repealing the local option prohibition existing in the various localities in which it has heen adopted, and this it has been repeatedly declared is beyond the power of the Legislature.. See Ex parte Elliott, 44 Texas Crim. Kep., 575, to the effect “that the local option law once adopted in a given territory, remains the law in that territory until it is repealed by the voters of the same territory.” See also Ex parte Pollard, 51 Texas Crim. Rep., 488. Speaking of this clause of the Constitution, Chief Justice Brown, writing the opinion of the Supreme Court, said: “The section of the Constitution quoted provides a method—a referendum—by which, the voters of a given territory may exercise the sovereign power of legislating upon this subject, which places the law adopted by them above legislative authority, as if it had been embraced in the Constitution.” State v. Texas Brewing Co., 106 Texas, 121. From what has been said it is apparent that in the greater part of the State there is in force prohibition of the sale of intoxicating liquors under a law which is not within the control of the Legislature, because it and its provisions, by the exercise of- primary sovereignty vested in the people of the localities by the Constitution, has been fixed in a manner depriving the Legislature of the power to annul or change it without the consent of the people adopting it, and among the provisions so fixed is that which declares that the law shall remain in force only until the people of the district shall decide otherwise; the right to so decide at an election being expressly stated in the law adopted. The principles fixed in our jurisprudence in the manner stated by the court in Lewis v. State, are incompatible with the exercise of the power attempted in the Act in question. They are consistent only with the theory that the clause of the Constitution mentioned so restricts the general power of the Legislature that, while it may pass and enforce laws regulating and restricting the sale of intoxicating liquors, it can only prohibit them in the'manner prescribed by the section of the Constitution in question, that is, by a vote of the people affected. We are referred to the case of Ex parte Bell, 28 Texas Crim. App., 96, as an authority for the contrary view. The prosecution in that case was for pursuing the occupation of a liquor dealer without posting his license in a conspicuous place. Ho' fault can be found with the decision of the court that there was nothing in section 20 of article 16 of the Constitution which was an impediment to the validity of the law in question. The Legislature has now, and at all times since the Constitution was ¿dopted, the power to forbid the saloon business, and the power to destroy it implies a lesser power of imposing conditions upon its conduct. The law involved in the Bell case was not a prohibition law, but a regulation of the sale of intoxicating liquors. Regulation makes the sale conform to prescribed rules. Prohibition interdicts it altogether for beverage purposes. Century Diet., vol. 6, p. 505; Joyce on Intoxicating Liquors, sec. 139; Ruling Case Law, vol. 15, pp. 258-262; Bowman v. State, 38 Texas Crim. Rep., 14; Ex parte Hollingsworth, 83 Texas Crim. Rep., 400, 203 S. W. Rep., 1102. The expression used by Judge Hurt, in writing the opinion in the Bell case, supra, to the effect that the clause in the Constitution mentioned would not prevent the Legislature from passing a law prohibiting the sale of liquor throughout the State, was upon- a question not involved. It is in a class of remarks treated in all jurisdictions as dictum of which our Supreme Court said: “Dicta, or even matters of argument not necessary to the decision of the question before the court, as is well known, is never regarded as deciding the law of the case, or as furnishing a rule of action for the court itself in which the case is pending, or even binding upon the judge by whom the opinion was prepared.” Smith v. Alston, 40 Texas, 141. The subsequent decisions of this court do not indicate that the expression referred to was regarded as an authoritative decision of the question. Among the cases cited in the opinion in the Lewis case are cases following, by special reference, the Dawson case, and written by Judge Hurt. The case of Ex parte Brown, 38 Texas Crim. Rep., 295, in the decision of which Judge Hurt participated, referring to section 20 of article 16 of the Constitution, says: “It occurs to us that this expression of the will of -the people on the subject is exclusive’ of any other method to be pursued by the Legislature. Whatever may be said as to the power of the Legislature of other States, with no express provisions of their Constitutions on this subject, to legislate in regard to the liquor -traffic under the general police power, the same does not apply with us. We have an express provision on the subject, and that provision was intended to prescribe a method of dealing with the question, and to exclude any other rule or method, at least so far as local option territory is concerned.” In Ex parte Vaccarezza, 52 Texas Crim. Rep., 109, a case involving the construction of a repealing clause of a license law, Judge Broolcs, writing the opinion, by way of argument says': “No one seriously insists that the Legislature should pass a prohibition law applying to the whole State without first submitting to the people and having them adopt a constitutional amendment authorizing said Act,” adding that whether a constitutional amendment would be necessary was a question úpon which the legal profession entertained conflicting views. Prior to the passage of the present Act the treatment of the subject by the legislative department of this State has been indicative of the view that the clause in the Constitution was an impediment to the establishment of prohibition throughout the State by legislative enactment. This conclusion is drawn from the fact that in 1887, and again in 1911, the Legislature, possessing the requisite two-thirds majority, enacted a joint resolution referring to the people a proposed amendment to the Constitution, the purpose of which was to establish Statewide prohibition of the sale of intoxicating liquors. The convention framing the Constitution considered the various methods of dealing with the liquor traffic, including regulation, prohibition and local option. See Const., 1875, pp. 80, 103, 556. These methods were well understood at the time. Freund on Police Power, p. 204; 23 Cye., pp. 76-78. The language selected by the framers of the Constitution, when its meaning is clear, controls the court in interpreting it. (8 Che., 732.). The terms of section 20, article 16, are not susceptible of the construction that the Legislature was simply given the permission to enact a local option law. It is mandatory. Holley v. State, 14 Texas Crim. App., 515; Cooley on Const. Lim., 4th ed., p. 94. The Constitution, containing a positive direction to the Legislature to pass a law whereby the people, in the counties and subdivisions named, might by majority vote decide from time to time whether the sale of intoxicating liquors should be prohibited within their limits, contains an implication against the Legislature doing anything which would render inoperative and ineffectual the law which the Constitution commands shall be passed. Cooley, Const. Lim., 8th ed., p. 127. “Where the means for the exercise of a granted power are given, no other or different means can be implied as being more effective or convenient.” 8 Cyc., 742. “Being simply a chart containing limitations upon power, whenever the Constitution declares how power may be exercised over any subject, then no power can be exercised over that subject in any manner not clearly within the. plain import of the language of the Constitution.” Holley v. State, 14 Texas Crim. App., 515. The means in our Constitution named for establishing prohibition of the sale of intoxicating liquors, is that the Legislature shall pass the law, and the people in the localities named may adopt it. The people of the localities named are given, by the Constitution, a part of the legislative power, the power to decide whether the Legislature shall prohibit the sale of intoxicating liquors in their localities, and the power to decide whether it shall continue in force. The right to make these decisions being conferred by the Constitution upon the people mentioned, can be exercised by them only. The fact that they are vested with the power to-make the decision, implies that the decision of the question is not left with the Legislature. In the absence of the clause of the Constitution in question, there would be no restriction upon the police power vested in the Legislature to prohibit the sale of intoxicating liquors. Whether it should be prohibited or permitted would be a matter of legislative discretion. If the power of the Legislature to pass laws affecting the whole State is not abridged by the clause in question, its right to pass a license law effective throughout the State can not be denied. It does not possess that power. State v. Texas Brewing Co., 106 Texas, 121. “When the Constitution defines the circumstances under which a right may be exercised, the specification is an implied prohibition against legislative interference to add to the condition.” Cooley, Const. Lim., 4th ed., p. 78; Parks v. West, 102 Texas, 11. The command to the Legislature in section 20, article 16, supra, to pass a law whereby the voters may determine whether the sale of intoxicants shall be prohibited, defines the circumstances under which prohibition of such sales may be made effective. These circumstances require the act of both the Legislature and the voters; neither can effect the-object without the co-operation of the other. If the law in question be sustained, the powers vested in the people of the localities by the Constitution can not be exerted. It is in opposition to the exercise of these powers, and destroys the vitality of the clause in the Constitution. The power to annul, suspend or render dormant this part of the Constitution would carry with it the power to overturn any of its provisions. The framers of the Constitution did not intend that the representatives of the districts of the State should have the authority to set at naught the powers committed to the people of the localities named. On the contrary, the Constitution points out a uniform and exclusive means of establishing prohibition of the sale of intoxicating liquors, withdrawing the subject from the political ferment which would result from its debate at each recurring session of the Legislature. The subject was made one of local self-government,. within the control of the people of the localities named, to remain so until such time as the whole people of the State should by their votes change the Constitution. “Since the Constitution is intended for the observance of the judiciary as well as the other departments of government, and the judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands,” Ruling Case Law, vol. 6, p. 73. The relator is ordered discharged. Relator discharged.
PRENDERQAST, Judge (dissenting).—The Statewide statute prohibiting the sale of intoxicating liquors, without any doubt, is constitutional, valid and legal in every respect. . There is no provision in our Constitution, which directly or by implication, prohibited or prevented the Legislature from enacting it. It is common knowledge—known by all, that the Legislature of every State in the United States of America, and- this State, has the undoubted police power and authority to prohibit the sale of intoxicating liquors as a beverage within its whole bounds—Statewide—unless there is some provision in its Constitution which clearly forbids it. This has been expressly held many times by the Supreme Court of the" United States, and by the Supreme Court of every State which has passed upon the question, and by every law writer who has written upon the subject. The Legislature has this police power and authority as a necessary incident of the sovereignty of the State—the power of self-preservation, and protection of its men, women and children from the awful curse of such liquors; for, “by the general concurrence of opinion of every civilized and Christian community, there are few sources of crime and misery to society equal to the saloon. The statistics of every State show a greater amount of crime and misery attributable to the use of such liquor obtained at saloons than to any other source.” And because-“the confederated intelligence of mankind has come to realize that the sale and nse of' such liquors is a profligate waste of the material resources of the country, and is a universal- impairment of its man-power. Also because experience has developed the truth that the liquor traffic knows no master and knows no law, and is beyond the pale of all adequate regulation,” and for that many -years it has ruled this country with an invisible iron hand, and for the past few years and now its influence and power has been and is pro-German and against the United States, and the State, in this war. It was expressly decided by this court, when the judges composing it were Judges White, Willson and Hurt, that section 20, article 16, of our Constitution, in no way deprived the Legislature of said un-' doubted police power and authority.. They so decided—not one time only—but in effect, four times. (Bell v. State, 28 Texas Crim. App., 96; Ex parte Bell, 24 Texas Crim. App., 428; McGuire v. Glass, 15 S. W. Rep., 128; McGuire v. State, 15 S. W. Rep., 918.) The Supreme Court of the United States unanimously expressly held: “There is nothing in the Constitution of Texas restricting the power of the Legislature in reference to the sale of intoxicating liquor,” . . . citing the Bell cases supra. (Gioza v. Tiernan, 148 U. S., 661, 37 L. Ed., 601.) Judge Henderson, while a member of this court, so held. (Ex parte Viccarazza, 52 Texas Crim. Rep., 117-118.) Section 20, article 16, of our Constitution is simply a plain and clear command to the Legislature to enact a law whereby the voters of any county, justice’s precinct, town, city (or other subdivision of the county), by a majority vote, may determine that the sale of intoxicating liquors shall be prohibited within its local limits alone. Certainly it does not say to the Legislature, thou shalt not enact a law prohibiting the sale of such liquors in the whole State. . This court, Judge Hurt writing, held, “the object of this provision was not to deprive the Legislature of its power over the subject”; . . . and further, to say that local option divests the Legislature of the power to prohibit the sale of such liquors all over the State, “is a proposition too preposterous for discussion,” and “is absurd.” (Bell case supra,) Undoubtedly the constitutional convention, in inserting said section in the Constitution, and the people in adopting it, never for one moment thought or imagined, that they were thereby depriving the Legislature of the necessary police power and authority to prohibit the sale of such liquors all over the State whenever it deemed it necessary or proper, for they knew that the sale and resultant use of such liquors was the greatest curse to mankind. If they had so intended they would have said so in plain and clear language, like they did in many of the sections from 30 to 58, article 3. Our Constitution divides the powers of the government of this State into three distinct departments—legislative, executive and judicial; and expressly requires that no person, or collection of persons, of one of them, shall exercise any power properly attached to either of the others. (Art. 2, sec. 1.) And vests legislative power in the Legislature exclusively. (See. 1, art. 3.) "Undoubtedly the power to enact and repeal laws belongs exclusively to the Legislature. This court can not legally repeal any law passed by the Legislature. And if it should do so, it unquestionably illegally usurps power never given it, and never intended it should have. A law may be as effectually repealed by a court by illegally holding it “unconstitutional,” when it is not so, as if it should in express language say a certain law passed by the Legislature, naming it, “is hereby repealed.” Our Constitution prescribes the same oath of office of every officer of. each of said three departments. (Sec. 1, art. 16.) Every legislator, and the Governor,, takes exactly the same oath, to discharge and perform his duties agreeably to the Constitution of this State, as each of the judges of this court takes. Ho more. Ho less. In enacting laws, the legislators, and the Governor in approving them, undoubtedly determines and holds that such laws are constitutional. By the enactment of the Statewide prohibition law—now, in effect, the same as repealed by the decision herein—the 103 members of the House who voted therefor held it was constitutional, under their solemn oaths. So, the twenty senators, counting the two paired, who voted for it, held it was constitutional, under their solemn oaths. The Governor, too, by approving it, held it was constitutional, under his solemn oath. Even of the small number of legislators who voted against its passage, but two in the House and one in the Senate, stated they did so because they thought it was unconstitutional. Doubtless none of the others who voted against its passage did so for that reason, but for altogether other reasons. "So we have two of.the three departments of this State expressly holding said law is constitutional. The great Democratic convention of this State, at Waco, on September 4th last, expressly and unanimously endorsed said Statewide prohibition law, and unanimously commended the Legislature for enacting it, thereby holding it was constitutional, valid and legal. A considerable number of said 103 members of the House, and twenty senators, were eminent, learned, and great lawyers of this State. Among those of the House was one who formerly adorned this bench as a member of this court; and one of the senators is the Democratic nominee for one of.the judges of this court, the successor of this writer, an eminent, great and learned lawyer, who will doubtless very soon be a member of, and adorn the bench of this court. And among the members of said Democratic convention were also a large number of the greatest, most eminent and learned, lawyers of Texas, at least the equal of any on the bench of any court. The fact that others of the Legislature and convention were not lawyers in no way disqualified them from holding said law constitutional. Such power is not given alone to lawyers. Others also have it, and have the right to exercise it, and do. All courts and law writers hold, and this court has held, that in deciding upon the constitutionality of a law no court will declare the law unconstitutional unless it is so beyond a -reasonable doubt. That a reasonable doubt must be solved in favor of the legislative action, and the law be sustained. And yet—and yet, in the very face of said former decisions by this court, by the great judges thereof—Hurt, White, Willson and Henderson—and of said unanimous decisions by the Supreme Court of the United States; and of the vote of 103 members of the House; and of the vote of twenty senators; and of the approval of the Governor; and of the unanimous vote of said Democratic convention—each and all holding that said Statewide law is constitutional, it is now ruthlessly torn from the statute book by Judge Morrow—one judge of this court. This is wrong—radically wrong. If the decision herein stands, an awful. calamity to this great State will occur, for then the iniquitous saloons and liquor traffic, with all their baleful and wicked effects, will be illegally foisted upon a large number of our people—men, women and children, including many of the more than 200,000 soldiers in training, and more than that number of industrial workers,' all doing their “bit”—everything they can, to win this atrocious war waged upon us for conquest by the cruel, beastly and inhuman Huns. It is my intention now to write more fully showing the undoubted validity of said law, if Judge Morrow adheres to his decision upon final hearing upon a motion for rehearing, if one is filed. For the present I merely write briefly to voice my earnest protest against Judge Morrow’s decision.
ON REHEARING. November 27, 1918. MORROW, Judge. We have re-examined the subject in the light of the motion for rehearing prepared by the Attorney General, and on the points reviewed in the original opinion it would be but a repetition to restate our conclusions or the reasons therefor. On the phase of his motion embodying the proposition “that the Legislature had authority, under the law of military necessity, to prohibit the sale of intoxicating liquors throughout the State, notwithstanding there was within the Constitution an express or implied prohibition of the enactment of such a, measure when no such military necessity existed,” we think the Attorney General misapprehends the existence of the facts and the law upon which he found his proposition. At the time the law in question was passed there were on the statute books laws which not only forbade, under felony penalty, the sale or gift of intoxicating liquors to a member of the military organization at any place in the State, but also laws prohibiting-the sale of such liquors to nine-tenths of the civil population, and in addition thereto a Federal regulation establishing a prohibited zone around the military camps, and authority in the President as Commander in Chief of the army to extend or enlarge such prohibition when deemed necessary or advisable. Recalling the existence of these legal restrictions on the liquor traffic, it is apparent that the. statutory prohibition law was not passed to meet a necessity to protect tlie soldiers training in the State from the evils of intoxicating liquors during the war. The view that it was not to meet an emergency is emphasized by the fact that the operation of the law was deferred for more than three months after its passage. See Local Option Laws; also Acts 35th Legislature, 4th Called Session, ch. 7 and ch. 12; also acts 65th Congress, 1st Called Session, ch. 15, p. 76, sec. 12: Ex parte Hollingsworth, 83 Texas Crim. Rep., 400, 203 S. W. Rep., 1102. . The Governor, in his proclamation calling the Special Session of the Legislature, suggested the enactment of several measures which would, by constitutional means, protect the public health and morals from evils growing out of the fact that the sale of intoxicating liquors was not prohibited in the viciiiity of some of the military camps, except in a limited radius,, which the Federal government did not wish on its own account to enlarge. These laws were all passed and given immediate effect, and such of them as have been construed by this court have been sustained as a legitimate exercise of the police power under the control of the Legislature. See Ex parte Hollingsworth, supra. The Governor, in a message to the Legislature, advised against the passage of a law prohibiting the sale of intoxicating liquors on the ground that its constitutionality was questioned by many eminent lawyers, and that the zone law and others mentioned specifically in his proclamation would effect the desired end, stating that “a measure strong because of its certainty was to be preferred over a measure which in reaching too far may incur the risk of failing entirely.” The history of the transaction impresses us with the view that section 3 of the Act was not passed to cover a temporary military necessity, but represents the will of the Legislature .to permanently depart from the local option method of prohibiting the sale of intoxicating liquors, which was the method pointed out in the Constitution, and rested tin the will of the people in the counties and district affected, expressed by their vote; and to substitute therefor a method resting on the will of the Legislature. Military necessity, so far as we are advised, does not become the authority for the passage of law. Its functions arise, as we understand, when in the time of war extraordinary and unforeseen emergencies occur in which the protection of the public interests requires for the moment the disregard of private rights, but to justify its exercise “the public danger must be immediate, imminent and impending, and the emergency in the public service must be extreme and imperative, and such as will admit of no delay or resort to any other source of supply.” United States v. Bussell, 13 Wall., 623. The power to make war and the power that may he lawfully exercised incident thereto, is not in the State, but in the Federal government. In the Constitution of the United States we read: “No State shall, without the consent of Congress, engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.” A State may be impelled by conditions growing out of war to enact police regulations that it would not otherwise establish. In making such enactments, however, the power exercised must be within the limits prescribed or implied in the State Constitution. The people of the United States are at war, maintained through the agencies authorized by their Federal Constitution. They are proceeding according to the organic law of the nation. On the subject we quote from a recent address by a jurist of national reputation: “While we are at war we are not in revolution. We are making war as a nation, organized under a Constitution from which the established national authorities derive all their powers, either in war or in peace. The Constitution is as effective today as it ever was, and the -oath to support it is just as binding.” Amer. Bar Assn., 1917, vol. 42, p. 232, The Federal Constitution declares: The Federal Constitution declares: “The Congress shall have power to declare war, to raise and support' armies, to provide and maintain a navy, to make rules for the government and regulation of the land and naval forces; to provide for the. calling forth of the militia to execute the laws of the Union, suppress,. insurrection, and to repel invasion; to make all laws which shall be necessary and proper for the carrying into execution of the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or any department or office thereof.” In these are embodied the war powers of the nation. It is said by the Supreme Court of the United States: “The powers delegated to Congress, relating to war, are plenary and exclusive. . . .” Tor-ball’s case, 13 Wallace, 297. The Congress, having power to prosecute war, and not in the Constitution limited as to methods, has broad discretion in the enactment off extraordinary regulations during war. These, however, to be valid must: find sanction in the express or implied powers granted to Congress. McCullough v. Maryland, 4 Wheat., 316, 4 L. Éd., 579. In both peace and war the Legislature, in the passage of laws, must, observe the express and implied limitations of the State Constitution-,, and the Congress must find sanction in the Federal Constitution for its. enactments. Neither can exercise unbridled power on the assumption that a necessity exists therefor. The State Legislature can not, on the assumed existence of a military necessity, pass a law prohibited by'the State Constitution, and the Federal government equipped with adequate war power is not so impotent to protect its armies that it must impel the State Legislature to do that which the State Constitution forbids. In the American system of government by the people through agencies, with powers "defined and limited by written Constitution, the courts have no power to legislate. Their utmost is to refuse to aid in the enforcement of an Act of the Legislature which transcends the authority vested in that department by the Constitution. The limitations imposed by the Constitution are essential (110 U. S., 576), and there is no menace to constitutional government in requiring their observance, though there is danger thereto in suffering a disregard of them. No expediency can condone the sanction by the courts of an Act of the Legislature which, as section 2 of this one does, annuls a provision of the Constitution. The part of the Act prohibiting the sale of intoxicating liquors is not merely a failure to do that which the Constitution commands, but does that which renders ineffectual the power conferred by the Constitution on the people of the counties. The .courts indulge a presumption in favor of the validity of legislative Acts, but the presumption is not conclusive. To so regard it would ¿mount to an abdication of the power vested in, and a disregard of. duty imposed on, the judicial branch of the government. The motion for rehearing is overruled. ■ Overruled.
PRENDERGAST, Judge, dissenting.
DAVIDSON, Presiding Judge (concurring).—The State files a motion for rehearing, alleging the opinion heretofore rendered is erroneous, first, because “it is not shown beyond a reasonable doubt that the Act is unconstitutional; the court should have held it valid; second, that Judge Hurt’s opinion in the Bell case is not dicta, and the court should have followed it, and held the Act valid; third, that the court should have held the Act valid under the law of military necessity; fourth, the court erred in holding the local option section of the Constitution a limitation on the police power of the State to enact the Statewide Act, .■and, fifth, the court erred in holding the local option section of the ■Constitution a limitation on the police power, and because the opinion ■of the court violates section 28, article 1, of the Constitution.” These five grounds embody but one proposition, and in it the above five subdivisions center and about it revolve; that is, the police power is superior to constitutional provisions, and by its exercise the Legislature is authorized to suspend the Constitution. The writer recognizes the proposition as being in a general way correctly stated, that if there is a reasonable doubt of the constitutionality of the Act it should be upheld. This has been decided often, and the authorities are not necessary to be cited. But that is based upon the further proposition that there' may be a question of the power of the Legislature to provide under its police powers regulations or enact legislation carrying out the constitutional power invested in the. Legislature. There can be found no case, so far as the writer has been able to- ascertain, which lays down the proposition that the police power is superior to the constitutional provisions, or can suspend the Constitution when the question arises on a conflict of superior authority. The police power is always subordinate to constitutional authority. The police power, in a general way, pertains to the legislative department, and is derived from the Constitution, and delegated to the legislative branch of the government by the provisions of the Constitution. The Legislature could not exist except by the provisions of the Constitution. Police power inheres in the Legislature by reason of this granted power. The people framing their Constitution did not delegate authority to the Legislature, or any' department of government, to override or abrogate any provision of the Constitution. The power of the courts, of the executive department, and the Legislature finds authority only in the provisions of the Constitution. They are not outside of nor superior to those provisions, and can not be. They exist by reason of the will of the people as expressed in the Constitution. The contention of the Attorney General, therefore, is that the provisions of the Constitution are not limitations upon the police power to be exercised by the Legislature. This contention is not correct, and can not be sustained. The police power is never a limitation upon the Constitution, but the Constitution is a limitation upon the police power. This ought to be a self-evident proposition without discussion or citation of authority, and so fixed by the provisions of that instrument. A few references to it ought to settle this-without citing adjudicated cases. Article 1, section 2, of the Constitution, the Bill of Bights, provides that: “All-political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient." It can not be contended in the fact of this language that the Legislature, by reason of the police power, can suspend any clause of the Constitution, for the Legislature only acts under delegated authoritjq its grant of power being found in the Constitution. In a general way constitutional provisions are considered as limitations upon legislative power as applied to State governments. This proposition is to be considered from the standpoint of conferred authority, delegation of power. Such limitations can not be used to-destroy constitutional provisions, but can only be correctly used for the purpose of carrying into effect those provisions. Legislative power was not given to destroy but to uphold ordained governments. The Constitution was made for and by our citizenship for their use and benefit. Citizenship is not made for the Constitution, but the Constitution is made for the eitizenshop. Eor was the citizenship and the Constitution made for the Legislature, but the Legislature was created to carry into effect the Constitution. The police power is not a limitation upon the Constitution, but the Constitution is a limitation upon police power. The police power is a result of the Constitution to be operated by the Legislature to carry it into execution. These provisions can not be used for suspending, changing or altering the Constitution. There are many sections in the Constitution directly prohibitive of legislative power or police regulation. Some of these may be found in article 3, which creates the legislative department. It is declared in section 5-3 of that article that the Legislature shall not grant or authorize the matters therein specified. In section 54 of the same article inhibitions are set out to the effect that the Legislature shall have no power to release,e extinguish, etc., any indebtedness, liability or obligation of any incorporation or individual to the State., Section 55 of said article embraces numerous inhibitions against legislative authority, positive and direct in language. These are not necessary here to enumerate. It is not within the power, therefore, of the Legislature to suspend any of the clauses above mentioned. Article 1, section 2, inhibits the exercise of power which would abolish, alter or reform the government, and expressly provides this only can be done by the people. It is directly asserted in said section that this is an “inalienable right” of the people, and all powers of government are specially interdicted from usurping or exercising these powers. It specially excepts from the power of the people themselves and provides that a republican form of government shall not be destroyed, but that it shall remain unrepealable by any power, State or Federal. This the States pledge each other by binding obligations in the' Federal' government, and bound that government to maintain and guarantee such republican form of government. The contention of the Attorney General, therefore, from this viewpoint can not be sustained, for if sustained it would confer upon the Legislature power to destroy even this form of government. This the people can not do themselves. Legislative ■ bodies under American institutions do not and can not act by original or inherent power. Such authority has not been conferred. Such authority as that body may exercise is but one of delegation by the people through the Constitution. Assumption of original or inherent power by the Legislature would result in the higher and controlling authority over the people through their Constitution, and would be destructive of every principle of self-governing democracy. It was Edmund Burke, the great English orator, who said that: “This change from an immediate state of procuration and delegation to a course of acting as from original power is the way in which all the popular magistracies have been perverted from their purposes.” To avoid this result and to effect the purposes of our people as set out in article 1, section 2, of the Bill of Bights, article 17 was placed in the Constitution as the only means by which that instrument may be changed, altered or reformed, and limits that authority to the action of the people directly. This excludes the idea of alteration or changing the Constitution, or the suspension of its provisions in any other mode or manner. The Legislature may suspend laws, but such power is especially limited for that purpose. This is to be found in article 1, section 28, of the Bill of Bights. The power to suspend laws does not convey the idea of suspension of the Constitution, or its alteration or abrogation. This is the “inalienable right” of the people. It will be noticed that our government, as before stated, is republican in form and in its nature. It is a representative democracy. It is based upon the theory that autocracy, militarism and social democracy shall find no lodgment with us. .They are excluded as forms of government and we limit our government to republican form as it was instituted and guaranteed by State and Federal Constitutions. A complete refutation to the position of the Attorney General that the Legislature can suspend the Constitution or any of its provisions, is found and emphasized in addition to section 2, article 1, and article 17 already cited, in the provisions of section 29 of article 1, which ordains that: “To guard against transgressions of the high powers herein delegated, we declare that everything in this ‘Bill of Bights’ is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.” This absolutely prohibits any action on the part of the Legislature, or other departments of the government, to do any act or pass any law which may conflict with either the “Bill of Rights or the following provisions” of the Constitution. It emphatically declares that all such action or laws shall be void. This section reiterates and emphasizes that the power to the different departments of the government is only one of delegation. It precludes the idea of original power in any department of the government. It denounces complete invalidity of all acts which may conflict with any provision of the Constitution. All provisions of the Constitution are by the .terms of this section excepted out of the general powers of the government, and clothed with inviolable sanctity, and shall remain inviolate, not to be infringed by any department of government. They are more than mandatory and comprehensive in declaring inhibitions. The rule of legislative or official omnipotence finds no standing in American government or institutions. It may be that the British Parliament was clothed with authority to make and unmake British constitutions, but this idea does not obtain in America, or under American form of government. In the creation and erection of American constitutional government, State and Federal, the doctrine of omnipotence as applied to British Parliament was excluded, and in its place was substituted the omnipotent or inherent power of the people to make, alter or change their government. It was said by one of the great statesmen of Pennsylvania in the convention ratifying the Federal Constitution: “To control the power and conduct of.the Legislatures by an overruling constitution was an improvement, in the science and practice of government reserved to the American States. Perhaps some politician who has not considered with sufficient accuracy our political systems would answer that in our governments the supreme power was vested in the constitutions. This opinion approached the subject nearer to the truth, but does not reach it. The truth is, that in our governments the supreme, absolute and uncontrollable power remains in the people. As our constitutions are superior to our Legislatures, so the people are superior to our constitutions. Indeed, the superiority in this last instance is much greater for the people possess over constitutions control in act, as well as right. The consequence is that the people may change, the constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.” In fact, the supreme power in our people may be called the panacea in politics and in the science of free government. While it is true that some politicians may have contended that the sovereignty of the government is in the Constitution 'and not in the people, yet until very recently it has not been contended that these politicians may go to the extent of contending that legislative authority can overturn the sovereign will of the people. These questions have come for review in courts of Texas on various occasions. By numerous decisions the courts of last resort in this State have declared that the Legislature has no authority to make any rule or enact any legislation in contravention of the plain provisions of the Bill of Eights. Pratt v. State, 53 Texas Crim. Rep., 281; Gold v. Campbell, 54 Texas Civ. App., 269, 117 S. W. Rep., 463; Ex parte Farnsworth, 61 Texas Crim. Rep., 353, 135 S. W. Rep., 535; Kemper v. State, 63 Texas Crim. Rep., 1, 138 S. W. Rep., 1025. This proposition was asserted and laid down in Snyder v. Baird, etc., 102 Texas, 4. The language of that decision is emphatic to the effect that the Legislature has no authority to annul any clause of the Constitution. In State v. Moore, 57 Texas, 307, it was held that the Legislature can not withdraw any power from the hands of those in which the Constitution has placed it unless the Constitution expressly so authorizes. It has also been held that the Constitution is the superior and supreme law, and laws or acts of the legislative body in conflict with it, or its provisions are void. Williams v. Taylor, 83 Texas, 667; Higgins v. Rinker, 47 Texas, 385; Galveston Ry. Co. v. Gross, 47 Texas, 428; Huntsman v. State, 12 Texas Crim. App., 619. It is also the declared doctrine in Texas, and has been so held by the courts, that the Constitution may be expanded, to give effect to its provisions, but this can not he done to infringe or defeat its purpose or provisions. Harris v. State, 7 Texas Crim. App., 212. All provisions of the Constitution are mandatory, and necessarily so. They are not directory. For a collation of a great number of cases so holding see Harris’ Ann. Const., at page 219, note 54. It is also held in State v. Durst, 7 Texas, 74, that the provisions of the Constitution are mandatory upon the courts. It has been further held that any decision of the courts holding contrary to the Constitution of this State can have no validity. It is the exereise of unauthorized and unwarranted power on the part of the court. Chase v. Swayne, 88 Texas, 218. x Nor is there any force in the contention that because article 10, section 20, is not self-executing, therefore the Legislature may disregard, set it aside or overrule it. The proposition has been announced and sustained hv the decisions and jurisprudence of Texas that any and all provisions of the Constitution are self-executing to the extent that anything done in conflict with such provisions, or in violation of such, provisions, are null and void. Hemphill v. Watson, 60 Texas, 679. See also Const., art. .1, sec. 29. One of the most far-reaching and dangerous propositions asserted by the Attorney General is that the Legislature may suspend the Constitution, or any of its provisions, on account of military necessities. This might And defensive grounds in the military autocracy of Germany, hut nbt in democratic America. The Texas Legislature has no authority to declare war or make treaties. Such power is delegated alone to the Federal government by the States of the Union. If Texas has not the authority to declare war, it would seem to necessarily follow that she could not invoke the police power of the State to enact war measures in conflict with the Constitution. That instrument declares in section 24 of the Bill of Eights that military shall always he subordinate to the civil authority. To sustain the contention of the Attorney General would mean the abolition of the republican form of government and the substitution in its place of a military government. This is beyond comprehension or contemplation in Texas. It is directly foreign to every principle of our government, and the very mention of it ought to he sufficient to show the falsity of the contention. One of the leading features'of Texas independence may bé quoted thus: “In this expectation they have been cruelly disappointed, inasmuch as the Mexican nation has acquiesced to the late changes made in the government by General Antonio Lopez de Santa Anna, who, having overturned the Constitution of his country, now offers, as the cruel alternative, either to abandon our homes, acquired by so many privations, or submit to the most intolerable of all tyranny, the combined despotism of the sword and the priesthood.” This was one of the basic reasons why the Declaration of Texas Independence was written. It is to he hoped that the priesthood of Texas will never lend their influence to the intolerable doctrine of military necessity as a means of overruling our Constitution, or to carry out any particular theory or political contention. Texas patriotism discarded in the Declaration of Independence the idea of military authority, and engaged in a war to the successful extermination 6f that thought in the battle of San Jacinto. This gave to the world a new republic with its emblem of authority—the Lone Star flag. It is a singular contention, novel, fallacious and destructive, that the Legislature of Texas, under delegated authority, can overturn the Constitution and inject into our government the doctrine of military necessity as a means of overcoming and destroying the republican form of government. Another contention of the Attorney General is the opinion in the Bell case, 28 Texas Crim. App., 96, is authority for his proposition that the Legislature may suspend the constitutional provisions, article 16, section 20. That opinion was written by Judge Hurt. The right of the people to dominate the government in all of its branches, including the police power, found no stronger advocate in public life and on the bench than' Judge Hurt. Such imputation is foreign to everything Judge Hurt ever wrote in his -judicial life. He never used his great powers or lent them to the doctrine of subversion of our government by delegated authority. Iiis whole judicial life was directly exercised to prevent such catastrophe. The Bell case, supra, is not authority for the proposition that Judge Hurt held the police power of t¡re State could be exercised in opposition to section 20, of article 16. " The question at issue in that-case was simply the power of the Legislature to dominate and control, and even if necessary abrogate the selling of intoxicants in saloons. That section 20, article 16, did not abolish the police power of the State in this respect would hardly be questioned, but it will be noticed in this connection that the police power of the State could not operate on saloons in local option territory. The very statement of the fact that local option was in effect is irrevocable evidence of the fact that saloons did not exist in such territory. In fact, they could not exist because the local option lawvprohibits the sale of intoxicants within the specified boundaries where the law is operative. There ought not to he any conflict between the local option clause of the Constitution and the police poxver properly applied. The police power is subordinate to the provisions of that section of the Constitution, and can not exist in said territory sp far as controlling the sale of intoxicants. The people reserved that to themselves and segregated it from the legislative department. Judge Brown, in the case of State v. Texas Brewing Co., held that where the people acted upon this local option law and put it into operation within the given territory, it became as paramount as the Constitution itself and superior to legislative authority. Judge Brown in so stating was but following the unbroken line of decisions in Texas since the opinion in the Robertson case, 5 Texas Crim. App., 155. The opinion in the Eobertson case lays down the proposition that where local option is adopted it is superior to all laws that may come in conflict with it, and the decisions from that day until the present have with unanimity held to the same doctrine. See Ex parte Bell, 24 Texas Crim. App., 428; Ex parte Sundstrom, 25 Texas Crim. App., at page 159; Dawson v. State, 25 Texas Crim. App., 670; Lawhon v. State, 26 Texas Crim. App., 101, and Robinson v. State, 26 Texas Crim. App., 82. The opinions in the latter two cases were written by Judge Hurt. He also concurred fully in the proposition laid down in Ex parte Bell, Ex