Relator, accompanying his motion for rehearing, has filed a lengthy and able argument, devoting it mainly to the *Page 325 propositions that the Legislature can not delegate its power to enact laws nor delegate the power to suspend a law of the State. This was wholly unnecessary, for in the original opinion we held, "if the Act in question delegated the power and authority to suspend a law of this State, or to enact a law, of course it would be unconstitutional" — "that this is a representative form of government, and that while the laws are made by the people, yet they are enacted by and through their chosen representatives — to this principle or rule of law we do not think there has ever been or can ever be any dissent."
And yet relator laboriously re-argues this question, and would by his reasoning apparently create the impression that we held otherwise, citing the case of Brown Cracker Co. v. Dallas,104 Tex. 290, 137 S.W. Rep., 342, wherein Chief Justice Brown held:
"In Burton v. Dupree, 19 Texas Civil Appeals, 275, 46 S.W. Rep., 272, Judge Key, in his usual succinct and forcible style, points out the difference between the former and present provisions of our Constitution, and states clearly the effect such change must have upon this question. Quoting the present section 28, of article 1 of the Constitution, that learned judge says: `This section restricts the power to suspend laws to the Legislature, and especially prohibits the exercise of such power by any other body. In view of this provision of the Constitution, it must be held (whatever may have been the power of the Legislature under former constitutions) that that body can notnow delegate to a municipal corporation or to any one else authority to suspend a statute law of the State. We therefore hold that the provisions of the Penal Code referred to were and are in force within the entire limits of the City of Waco, as well as elsewhere in the State, and that the lease contract in question, being knowingly made for the purpose of assisting in the violation of a penal law, is contrary to public policy, and not enforcible in the courts.' Since the amendment to the Constitution, the Court of Criminal Appeals has held in accordance with Judge Key's opinion. If it be admitted that the Legislature intended to confer upon the City of Dallas authority to suspend article 361 within the district laid out, that provision of the charter would be void, because in conflict with section 28 of article 1, of our present Constitution. TheLegislature had no authority to delegate that power to the City."
So it will be seen that it was held that "if it be conceded that the Legislature intended to confer upon the City of Dallas authority to suspend article 361, that provision of the charter would be void." Now what is held to be the law in that case was also held to be the law in the original opinion in this case; the point of difference is that it is not conceded that this law authorized the suspension of any law of the State, nor does relator point out how nor wherein it authorizes the suspension of any law of the State, contenting himself with the general statement that the Legislature can not delegate the power to suspend a law of the State, which was conceded in the original opinion to be the law, and is now conceded to be, and nothing said or held in the original opinion is in conflict with this rule of law. *Page 326
He also refers us to the following cases: Burton v. Dupree, 46 S.W. Rep., 272, wherein it was held that article 1, section 28 of the Constitution, which provides that "no power of suspending laws of this State shall be exercised except by the Legislature," prohibits the Legislature from delegating to a municipal corporation authority to suspend State laws.
Ex parte Ogden, 43 Tex.Crim. Rep., wherein it was held that the Legislature can not delegate to a municipal corporation authority to pass ordinances violative of the laws of the State either by repealing or suspending the laws of the State.
Arroyo v. State, 69 S.W. Rep., 503, wherein it was held that under the Constitution the Legislature could not delegate its authority to set aside, vacate, suspend or repeal the general laws of the State, and cases cited in these opinions.
In the original opinion we reiterated the doctrine announced in these cases, because we believe they correctly announce the law, and we do now adhere to the law as announced in those cases. If it is contended that as the Legislature in section 8, article 7355 levied an occupation on pool tables in the following language: "From every billiard or pool table, or anything of the kind used for profit, twenty dollars," that the pool hall law delegates to some other body or person than the Legislature the authority to suspend this law, then his contention is not sound. The pool hall law was passed in 1913, and is the last expression of the legislative will in regard to licensing and running pool halls, and if there should be held to be any conflict between these laws, under all the authorities the last expression of their will would govern and be the law, unless this act should be held unconstitutional on other grounds. "`The different sections or provisions of the same statute or Code should be so construed as to harmonize and give effect to each, but, if there is an irreconcilable conflict, the later in position prevails.' Lewis' Suth. on Stat. Const. (2d Ed.), 268, p. 514; citing Ex parte Thomas, 113 Ala. 1, 21 So. 369; Hand v. Stapleton, 135 Ala. 156,33 So. 689; Van Horn v. State, 46 Neb., 62, 64 N.Y. 365; Omaha Real Estate T. Co. v. Kragscow, 47 Neb., 592, 66 N.W. Rep., 658. And: `If a conflict exists between two statutes or provisions, the earlier in enactment or position is repealed by the later. Leges posteriores priores contrarias abrogant.' Where there is an irreconcilable conflict between different sections or parts of the same statute, the last words stand, and those which are in conflict with them, so far as there is a conflict, are repealed; that is, the part of a statute later in position in the same act or section is deemed later in time, and prevails over repugnant parts occurring before, though enacted and to take effect at the same time. This rule is applicable where no reasonable construction will harmonize the parts. It is presumed that each part of a statute is intended to coact with every other part; that no part is intended to antagonize the general purpose of the enactment. To ascertain the legislative intent every part of an Act, and other Acts *Page 327 in pari materia, are to be considered. One part of an Act may restrict another part — an early section a later, and vice versa; but, if one part is so out of line with other parts and the general purpose of the Act that it can only operate by wholly neutralizing some other part, then the later provision is supreme, as expressing the latest will of the law-makers." Railway v. Rambolt, 67 Tex. 654; McKenzie v. Barker, 88 Tex. 669 [88 Tex. 669]. In Chiles v. State, 1 Texas Crim. App., 27, when this court was first organized, it held that it was the duty of the court to construe the Acts of the Legislature so that both may stand, but if they can not be so reconciled as that both may stand, the last must stand as the expression of the legislative will, and this has always been the rule in this court and the Supreme Court. But these two provisions of our Code are not in irreconcilable conflict, but may be and should be construed together, and in doing so we clearly follow the legislative intent and will. The Legislature having levied an occupation on pool and billiard tables when ran for profit, later adopted another statute whereby they conferred the right on counties and justice precincts to accept the provisions of a law whereby pool halls would not be licensed, and the two statutes merely provide and mean that pool tables and billiard halls will be required to pay a license fee of $20 where they are permitted to be licensed, and under this construction there is no conflict between the two laws, and such construction gives force and effect to the manifest intent of the Legislature, and one would neither repeal the other nor suspend it. The Supreme Court in the case of McKenzie v. Barker, 88 Tex. 669, states this is the proper rule of construction, for in that case they held that where one provision of the statute read "no court in this State shall have the power" when considered in connection with another provision of the statute the provision should read, "no court in this State, except the Supreme Court shall have the power," etc., that by this construction both articles would be sustained and this the court should do when a reasonable construction would accomplish the end. "`The correct rule of interpretation is that, if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them, and it is an established principle of law that all acts in pari materia are to be taken together, as if they were one law.' Fussell v. Gregg, 113 U.S. 560, 5 Sup. Ct., 631, 28 L.Ed., 993; Nashville Decatur Railroad v. Comans, 45 Ala. 443; Seymour v. State,51 Ala. 54; Wilcher v. Hamilton, 15 Ga. 440; State v. Gerhardt, 145 Ind. 460, 44 N.E. Rep., 469, 33 L.R.A., 313; Brewer v. Hamor, 83 Me. 257, 8 N.W. Rep., 507, 22 A. 161; Simpkins v. Ward, 45 Mich. 564, 8 N.W. Rep., 507; State ex rel. Slover, 126 Mo., 652, 29 S.W. Rep., 718; United States v. Davis, 54 Fed., 154, 4 C.C.A., 251.
"In our State this has been the rule from the earliest date. In Walker v. State, 7 Texas App., 259, 32 Am. Rep., 595, it is held: `Statutes in pari materia and relating to the same subject are to be taken and construed together, because it is to be inferred that they had one object *Page 328 in view, and were intended to be considered as constituting one entire and harmonious system.' See, also, Cain v. State,20 Tex. 355; Ex parte Schmidt, 2 Texas App., 196; Mock v. State, 11 Texas App., 56; Taylor v. State, 3 Texas App., 169. In our Supreme Court the rule is: `Laws relating to same subject and enacted during same session are construed together.' Austin v. Gulf, etc., 45 Tex. 234. All statutes relating to the same subject-matter should best be given concurrent efficacy in construction, and made to stand together. Dallam, 402. In order to arrive at intention of Legislature in statute, all laws in pari materia are to be construed together. Bonner v. Hearne,75 Tex. 242, 12 S.W. Rep., 38." Scoby v. Sweatt,28 Tex. 713; Hanrick v. Hanrick, 54 Tex. 101 [54 Tex. 101]; Laughlin v. Seela, 59 Tex. 177 [59 Tex. 177]; Taylor v. Hall, 71 Tex. 213; Braun v. State, 40 Tex.Crim. Rep.; wherein it is held that the latter Act can be held a modification or exception to the earlier Act. The citation of cases could be continued, but it is seen that the proper construction to be placed on these two provisions of the statute is above stated, that is, the prior statute is modified by the later Act to the extent that the pool hall occupation tax is applicable to the territory only in which the pool halls have not been prohibited, by an acceptance of the provisions of the later Act, and there is no conflict between the two provisions of the statute, and therefore one would not and does not suspend the other.
But it may be insisted that as this statute is a permissive statute, and when accepted, if it is thereafter decided by a vote to no longer accept the provisions of it, as the Act authorizes to be done, that this would be a "suspension of a State law," but we do not suppose anyone would seriously so contend. If so we only have to refer them to other permissive statutes. Chapter 14 of title 22 of the Revised Statutes provides that if the citizens of a town or village desire to incorporate they shall petition the county judge to order an election to be held, and he shall order an election to be held, and if a majority vote in favor of accepting the provisions of that chapter, he shall so declare and enter an order to that effect, and then they become entitled to all of the benefits of that law. In the same chapter it is also provided that if after having accepted this law by a majority vote, chapter 16 of same title provides that by petition to the county judge they may have an election ordered, and if a majority vote to relieve themselves of these provisions, the county judge shall so declare and enter an order to this effect, but no one has ever contended that this was delegating to the voters the power to suspend a law of the State. The law of the State remains the same, and they may again accept its provisions if they so desire by petitioning for another election, and a majority shall so vote. The same rule of law is applied in chapters 1 and 15 of title 22. And in article 762 it is provided that the city council may accept the provisions of the statute by a two-thirds vote, and by this vote and act the laws relating to towns and villages shall be no longer of force in that territory. But no one has contended that this was delegating the *Page 329 power to suspend a law; the right was acquired under a law passed by the Legislature, and the law remains the same whether accepted or rejected.
Again title 25 authorizes the creation of corporations, and the law as written governs them when created according to its provisions. This is a permissive statute, not a mandatory statute. It tells how the citizens of the State may proceed to accept the benefits of its provisions. And when they file this acceptance with the Secretary of State they are entitled to and receive all the benefits conferred by this law. A railroad company by it is given the highest function — that of eminent domain, the right to condemn and take the citizen's property. No man is bound nor required to accept the provisions of this law, and yet they can do so if they wish, and when they do, there is a penal statute to protect them in the rights thus acquired. Not only this, but the citizens under the provisions of this law can decide they no longer desire the benefits of this law, and file articles with the Secretary of State so declaring in accordance with the provisions of the law and be relieved of its provisions, but this would not and does not suspend chapter 25 of the Revised Statutes or any other law, and it has never been so contended.
Again, we have what is known as a State bank law. Men engaged in private bank business may if they desire accept the provisions of this law by filing the papers of acceptance therein provided; then they may elect whether they will accept the guaranty fund or bond feature securing their depositors. This is a permissive, not a mandatory statute. `Under this law, they may relieve themselves of the provisions thereof, by complying with its terms, and again engage in private banking. But no one would contend that this would suspend the State banking law. The law would remain and they could again take advantage of its provisions if they so desired. Numerous other instances can be cited as to the permissive features of our laws. It is an error to contend that all laws must be mandatory to be constitutional, and our courts have never so held, but on the other hand it has become a well recognized principle of law that the Legislature may enact permissive statutes as well as mandatory statutes. It is true, as hereinbefore stated, the Legislature can not delegate the power to suspend a law of the State, and this rule relator correctly states, but he does not present any feature of this pool hall law that does delegate the power to suspend a State law under the well recognized rules of law as announced by this court and the Supreme Court, or as laid down by the current text-writers cited in the original opinion.
Relator cites us to some cases that hold that where the law is contingent on an election to be held to determine whether or not they will accept the benefits of the law in the territory described in the Act is a delegation of the power to enact a law, they holding that the vote authorized is a part of its enactment, but as shown in the original opinion, while this doctrine had some adherents for a time, yet now the great weight of authority holds that this is not a delegation of the power *Page 330 to enact a law, but is but a permissive statute by which the Legislature had granted the rights and privileges therein stated, the terms thereof to be accepted in such territory as is authorized in the law whenever the conditions are such that it is deemed advisable by those residing in the territory. Relator admits that the text-writers are now virtually unanimous in stating that such a statute is not unconstitutional — that it is not a delegation of legislative authority to make a law, but the privilege grows out of the law as enacted by the Legislature, and this privilege we think the Legislature had the right to grant if there is no constitutional inhibition. But relator insists that we should not go outside the decisions of our State for light and aid in the construction of our Constitution, but we should adhere to the construction given to that instrument by our courts. Relator, in filing his original brief, did not apparently take that view, as he cited us a number of cases from other States. It was not until we had demonstrated that these decisions were no longer the law even in those States, that the latter decisions of those courts had overruled in the main the cases cited by relator, when he concluded we should narrow our investigation to the decisions of our own court, but as he insists, we shall take them as a guide; we will now discuss the case he cites from the courts of this State on this question, and some he does not cite.
In the first place, he claims that this court, as at present organized, in the case of Ex parte Farnsworth, 61 Tex. Crim. 342, upholds his contention in this case. We do not think so, for as said in the original opinion, the question involved in that case is not the one here presented, and for that reason we did not discuss it. But as he apparently does not appreciate the difference in the propositions involved in that case and in this case, we will briefly refer to that case. In the beginning of the opinion to the Farnsworth case it is stated: "We may condense appellant's main contention into one general proposition, towit: The Legislature is without authority to authorize a city to carry on its affairs as a municipal corporation under what is known as the initiative and referendum." And this is the sole question passed on. While it may be contended that there are some general expressions contained in the opinion which would seemingly uphold appellant's contention, we must always look to what was involved in a case to learn what was in fact decided. In that case an ordinance was proposed by the initiative method, that is, by petition the ordinance was presented to the board of commissioners; this board did not enact the ordinance, but under the provisions of the charter submitted it to a vote of the people for them to decide whether or not they would enact it as an ordinance, and as a majority voted for it, when result was declared, it was contended that it was a valid ordinance without the city legislative body having ever enacted or ever having been called on to consider it further than to order an election. The court in that case correctly held that under our Constitution this is a representative form of government, and while the people in fact make the laws, yet in the enactment *Page 331 of laws they act by and through their representatives. That is all that was held in that case, and in thus announcing the law, we then held and now hold that the Farnsworth case was correctly decided, for in that case no legislative body had ever enacted the ordinance or law but the question submitted to a vote was whether or not it should be enacted as a law or ordinance, by the people themselves and it was the election that enacted it, for no legislative body had prior or subsequent to the election ever enacted the ordinance. Had the legislative council of the city of Dallas enacted the ordinance, and declared it to be the law, the opinion in the Farnsworth case would not have been written. In that case it was the election that was depended on as an enactment of the ordinance or law; and it should have read, "Be it enacted by the people of Dallas at an election held for that purpose." In the pool room law, the law was enacted by the Legislative body, and its validity as a law or its enactment as a statute of this State is not and was not submitted to a vote of the people. It is the law of the State whether an election is ever held under its provisions or not, and if an election is held it does not amend, subtract, nor in any manner affect the provisions of the law as enacted by the Legislature nor its validity. And right here is where the confusion has arisen. If in the adoption of the pool room law the Legislature had provided: "Be it enacted by the Legislature of Texas: Section 1. That there shall be held an election on the ____ day of ____, 1913, to determine whether or not the hereinafter recited provisions and sections shall become the law of this State, and if a majority shall vote in favor of it, the Secretary of State shall tabulate the vote and so declare, and thereafter it shall become and be the law, but if a majority vote against it, then it shall not become the law of this State," then it would contravene the Constitution by delegating the power to enact the law, and be void, as was the ordinance in the Farnsworth case, supra, because its vitality or life would depend upon the election held. But chapter 74 of the Acts of the Thirty-third Legislature contains no such provisions, but in specific terms it declares what is and shall be the law of this State; and whether it shall become the law is left to the will of no other tribunal or person. The Legislature declared what the law should be and enacted it, and as enacted it is a law complete in and of itself, and the fact that in the law as enacted there is conferred certain benefits and privileges which may be accepted or taken advantage of, if the conditions in any county or justice precinct are such that the inhabitants of the county or justice precinct deem it advisable and for the best welfare of the county or justice precinct to do so, is no part of its enactment as a law. And herein was the error in the Swisher case, supra, in finding that under the law considered the Legislature had submitted to the people whether or not that Act should become the law of the State. No such question was submitted and the law would not bear that construction. If this had been a correct finding or conclusion, then the law as promulgated in the Swisher case would be the law of that case. This court and the *Page 332 Supreme Court have adhered, and do now, to this announcement of law in the Swisher case. "But, besides the Constitution does not provide for such reference to the voters to give validity to the Acts of the Legislature, we regard it as repugnant to the principles of the representative form of government found in our Constitution. Under our Constitution, the principle of law-making is, that the laws are made by the people, not directly, but by and through their chosen representatives." And in this opinion we adhere to that rule of law, and this is the only part of the Swisher case that has been adhered to and followed since its rendition. Relator in his brief and argument pays a high and deserved eulogy to the able men who then composed our Supreme Court, and from which we would not detract one iota, but in ability and learning we have had many men on our Supreme Court who were their equals, such as Chief Justice Moore, Chief Justice Willie, Chief Justice Gaines, Chief Justice Brown, and hosts of others. We name the above galaxy of able jurists because they are the men who have overruled the Swisher case, is holding that the Act under consideration in that case delegated the legislative power to enact a law. This, as shown in the original opinion, was not a mature conclusion of Judge Lipscomb and the others who composed the court, for in the opinion they say: "The question presented is not now of general interest as the Act has been repealed. We shall, therefore, not give to it the elaborate investigation that we otherwise would have felt called on to bestow on it." The law upon which they were passing provided for an election to be held throughout the State, not to determine whether it should become a law, for the Act became the law of the State according to its terms, but it providing for an election throughout the State, those eminent jurists, who did not, as they say, give the question thorough investigation, misconceived its terms and held that it was a delegation of legislative authority to permit the citizens to determine under the law whether or not they would accept its provisions. Relator's counsel in their brief and argument admit that the case passed on was dismissed on other grounds, but they insist that while the court did say they did not give this question thorough investigation, yet they insist that the learned Attorney-General who filed a brief in the case did give the question thorough investigation, and he, while insisting that the Act should be sustained, yet admitted that the weight of authority was at that time against its validity, and the cases were cited. Yet, as we demonstrated, those cases have not stood the test of time and judicial investigation, and have been overruled by the courts who rendered them, and the rule announced by the Supreme Court of Vermont at that time has become the prevailing and almost unanimous rule of construction. The first case referred to by the Attorney-General in that case is Bradley v. Baxter, 8 How. N.Y.P., 18, and relator also cites us to the case of Barto v. Nimrod, 8 N.Y. 483, but these cases have been overruled by the courts of that State in the cases of Clarke v. Rochester, 28 N.Y. 605; Rome Bank v. Rome, 18 N.Y. 38, in which cases it was held that a law enacted by the Legislature *Page 333 may be made dependent upon its acceptance upon the popular will of the named territory. Parker v. Commonwealth, 6 Bar (Pa.), 507, was overruled in Locke's Appeal, 72 Pa., 491, and Smith v. McCarty, 56 Pa., 359. The People v. Collins, 3 Mich. 343, was overruled by the courts of that State in the case of Feck v. Bloomingdale, 82 Mich. 393. It is thus seen that the cases cited by the Attorney-General in his brief in the Swisher case, and upon which relator relies, have all been overruled, and those courts now hold that an election under and by virtue of the law to decide whether they will accept its provisions in territory named in the Act is not a part of the enactment of the statute, where it is a complete statute, as the pool hall law is.
Relator insists that as the Swisher case had so held, in 1856, and the Constitution of 1876 contains commands in two instances, the stock law and intoxicating liquors, that the Legislature shall adopt this character of legislation, then this would indicate that the framers of the Constitution accepted the construction placed upon what is deemed a delegation of authority to enact a law in the Swisher case and therefore a law that authorizes the voters to accept its provisions in given territory, is a delegation of legislative authority under such construction we should follow that construction. There might be some force to this contention if the Supreme Court, the same court that rendered the opinion in the Swisher case, had not held otherwise prior to the writing and adoption of the Constitution of 1876. In the case of San Antonio v. Jones, reported in28 Tex. 19, the question again arose of what is a delegation of legislative power, and whether authorizing a vote to be held under the law is a part of the enactment of a law. An Act was passed incorporating the San Antonio and Mexican Gulf Railroad Company, in which charter cities and counties were authorized to subscribe for stock in said railway corporation in an amount not to exceed $50,000 each: provided, "That the chief justice and county commissioners of said counties shall not make such subscriptions unless two-thirds of the qualified electors of said county or counties, at an election to be held for that purpose, shall vote in favor of such subscription being made; and the chief justice of any county may order such elections to be held, and shall give notice of the time and object of such elections, by causing notice thereof to be posted up in each precinct of the county at least thirty days before the holding of such election; said election to be conducted in the manner regulating county elections, so far as the same may be applicable; provided, also, that the said mayor and aldermen of the city of San Antonio, and the towns upon the line and at the terminus of said railway on the gulf, shall not make such subscriptions unless two-thirds of the electors of said city or towns, qualified to vote for town or city officers at an election to be held for that purpose, shall vote in favor of such subscription being made; and said election shall be conducted in the same manner regulating the respective city or town elections, so far as the same may be applicable." The contention was made that this was a delegation of legislative authority, and the Supreme *Page 334 Court of this State, in an opinion by Chief Justice Moore, concurred in by all the court, held that this was not a delegation of legislative authority or power and was no part of its enactment as a law; that to leave such question to the people to decide by a vote at an election to be held under the provisions of the law, was not unconstitutional. After holding that the part of the opinion in the Swisher case that held the Legislature could not delegate its power was sound (and which we now say), Chief Justice Moore says:
"It is not a legitimate construction of the Act to incorporate the San Antonio and Mexican Gulf Railroad Company to say that the Legislature intended, or did thereby confer, upon the citizens of the city of San Antonio any legislative power whatever. The Legislature may grant authority as well as give commands, and acts done under its authority are as valid as if done in obedience to its commands. Nor is a statute, whose complete execution and application to the subject-matter is, by its provisions, made to depend on the assent of some other body a delegation of legislative power. The discretion goes to the exercise of the power conferred by the law, but not to make the law itself.
"The law, in such cases, may depend for its practical efficiency on the Act of some other body or individual; still, it is not derived from such Act, but from the legislative authority. Legislation of this character is of familiar use, and occurs whenever rights or privileges are conferred upon individuals or bodies, which may be exercised or not in their discretion. And if it may be left to the judgment of individuals or private corporations whether they will avail themselves of privileges conferred by the Legislature, there is certainly no valid reason why the same may not be done with citizens of a town or district, who, as a class, are to be affected by the proposed Act. Williams v. Commack, 27 Miss. 221; Dubuque County v. Dubuque Pacific R.R. Co., 4 G. Greene (Iowa), 2, and cases referred to above."
Thus specifically holding that in leaving the question of the application of the law to a vote of the people was not a delegation of legislative authority. This opinion was rendered in 1866, ten years prior to the adoption of the Constitution of 1876, and overrules the Swisher case as to what is a delegation of legislative power and authority, and it can not be contended that members of the constitutional convention of 1876 had in mind the opinion in the Swisher case, and did not know of this opinion of Chief Justice Moore rendered ten years after the Swisher case, and ten years before the constitutional convention.
Again in the case of Werner v. City of Galveston, 72 Tex. 22, where the question presented was the constitutionality of the law which authorized cities and towns by a majority vote at an election held to determine whether or not they would take control of the public schools, it was urged that under the Swisher case this would be a delegation of legislative authority, Chief Justice Gaines, speaking for the court, holds: "While it is settled that the Legislature can not delegate its authority to make laws by submitting the question of their enactment *Page 335 to a popular vote, it does not follow that the Legislature has no authority to confer power upon a municipal corporation, and to authorize its acceptance or rejection by the municipality according to the will of the voters expressed at the ballot box," and quotes from Mr. Dillon: "It is well established that a provision in a municipal charter that it shall not take effect unless assented to or accepted by a majority of the inhabitantsis in no just sense a delegation of legislative power, but merely a question as to the acceptance or rejection of a charter." 1 Dillon on Mun. Cor., section 44.
In the case of Graham v. Greenville, 67 Tex. 62, Chief Justice Willie, speaking for the court, says: "While the Legislature is not bound to obtain the assent of the persons residing within the contiguous territory before annexing it to a city, it may do so and provide that the annexation shall not take place unless a majority of such persons shall assent thereto in some manner prescribed by the Legislature. This is in no sense adelegation of legislative power." In the case of Stanfield v. State, 83 Tex. 317, as shown by the original opinion, it was held that where the Legislature had passed a law authorizing the Commissioners Court of the various counties, to accept or not accept its provisions, and if accepted, to later withdraw the county from under its provisions, it was held that this was not a delegation of legislative power and authority, and the law as passed by the Legislature was a permissive statute, complete when it left the legislative halls, and the fact the law left it to the determination of the Commissioners Courts of the various counties to determine whether or not they would accept its provisions, did not render the act unconstitutional. It would be neither the delegation of power to enact a law nor to suspend a law, although a county by vote of those authorized might be taken from under its provisions.
Again in the case of Johnson v. Martin, 75 Tex. 33, it was held that where the law authorized the Commissioners Court to determine whether or not the cotton weighers law should be accepted or taken advantage of in their counties, and, if so, to create the office of cotton weigher in whatever towns, etc., where in their wisdom it was deemed advisable, and to appoint or order to be elected a public weigher, it was contended that this was a delegation of legislative power, for it was contended it took the Act of the Commissioners Court to put the law in force in any particular place or county. The question is discussed at length, and the court in that opinion recognized that it was holding contrary to the holding in the Swisher case on what is a delegation of legislative power to enact a law, for in citing authorities, it cites Swisher v. State, 17 Tex. 441 [17 Tex. 441], as holding adversely and then proceeds to hold the rule as announced in the Swisher case is not the law, and the court in that case had arrived at incorrect conclusions as to what is a delegation of legislative power, and cites as authority for such holding Werner v. Galveston,72 Tex. 22; Graham v. City, 67 Tex. 62 [67 Tex. 62], and other cases. It further approvingly quotes: "The privilege of the electors of a district to be affected by a law to say whether they will *Page 336 accept its provisions, the law giving them the right to accept or reject is now generally permitted, and regarded as constitutional," citing People v. Stout, 23 Barb., 349; Down v. Wilcox, 45 Mo., 458; Bank v. Brown, 26 N.Y. 470; San Antonio v. Jones, 28 Tex. 19. In the case of Brown v. The City of Galveston, 97 Tex. 1, the present Chief Justice of the Supreme Court, Judge Brown, learnedly and at length discusses these constitutional questions, and under the rules therein announced there is no inhibition in the Constitution prohibiting the adoption of this character of legislation.
Thus it is seen that in every decision rendered by our Supreme Court since the opinion in the Swisher case, supra, was rendered, while the law announced that the Legislature could not delegate its power to enact a law has been approved, and is here now approved and followed, but that portion of the opinion which held that the Act then under consideration was a delegation of the power to enact a law has not been followed, but the exact contrary has been held in every case that has come before our Supreme Court beginning with San Antonio v. Jones, 28 Tex. 19, down to the present time. In the Johnson v. Martin case, supra, that case was specifically named, and the court announced it was not the law and would not follow that case wherein it so held.
However, relator in his motion for rehearing says that we bow too much to the opinions of the Supreme Court and do not give due weight to the opinions of our own court. As relator relied on the Swisher case to sustain his contention, and this opinion was by the Supreme Court, we naturally took the opinions of the Supreme Court to demonstrate that what was there held to be a delegation of legislative power was not a delegation of the power conferred on the Legislature to enact laws, and that in this respect that case had never been followed by the Supreme Court, but the exact contrary held to be the law. Relator seems to contend that the court as at present organized is the first to recognize that Locke's Appeal (which overruled the case of Parker v. Commonwealth so much relied on by relator) correctly announced the law, as to what constituted a delegation of legislative power, and it is intimated in so doing we have become "progressive and revolutionary." In the case of Ex parte Mato, 19 Texas Crim. App., 112, this court when composed of Judges Hurt, White and Willson had for consideration the very question here presented — what constitutes a delegation of legislative power — and they followed and adopted the rule announced in Locke's Appeal. The question in that case was: "Whether the Acts of the Legislature purporting to confer upon district judges authority to fix the time for holding and the terms of court in newly organized counties, whenever any unorganized county in their districts should become organized, was unconstitutional and void, such acts being an effort on the part of the Legislature to delegate a power it alone could exercise." In a unanimous opinion this court held in an opinion by Judge White:
"Independently of view above discussed, however, does the Act in *Page 337 question delegate to the judge legislative powers in contravention of section 1, of article 2, of the Constitution? The Legislature can not delegate any of its powers unless authorized to do so by the Constitution. (Willis v. Owen,43 Tex. 41.) Mr. Cooley says: `One of the settled maxims of the laws is that the power conferred upon the Legislature to make laws can not be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain.' * * * `But,' he says, `it is not always essential that a legislative act should be a completed statute which must in any event take effect as law at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event.' (Cooley's Const. Lim. (4th Ed.), pp. 141, 142.)
"In Locke's Appeal, Agnew, J., uses this forcible language: `To assert that a law is less than a law because it is made to depend upon 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.' Again he says: `The true distinction I conceive is this: The Legislature can not delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which can not be known to the law-making power, and must therefore be a subject of inquiry and determination outside of the halls of legislation.' Again he says: `If a determining power can not be conferred by law, there can be no law that is not absolute, unconditional and peremptory; and nothing which is uncertain, unknown and contingent can be the subject of law.' (72 Pa. St., 491.) In Moers v. City of Reading, Chief Justice Black says: `Half the statutes on our books are in alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. But it can not be said that the exercise of such a discretion is the making of the law.' (9 Harris, 188.)
"In his dissenting opinion in Locke's Appeal, supra, Chief Justice Sharswood says, `There are a good many acts of executive administration which they (the Legislature) can delegate to the courts, or to the municipal corporations, or to the people of the different districts. * * * Acts of executive administration are not Acts of legislation in the sense in which it was decided that the Legislature has no power to delegate its authority.'
"In Bull v. Read, 12 Gratt., 78, it is said: `Now if the Legislature may make the operation of its Act depend on some contingency thereafter to happen, or may prescribe conditions, it must be for them to judge in what contingency and upon what condition the Act shall take effect. They must have power to prescribe any they think proper.' *Page 338
"In King v. Reed, 43 N.J.L. 186, there was a provision in an act for the construction of a sewer which should receive drainage from three towns, and commissioners were by the Act to be subsequently appointed, whose duty it was to ascertain the entire cost of the improvement and divide it among the towns in proportion to the benefits received by the land in each; held not void as an attempt to delegate legislative power. In that case Judge Cooley is quoted as saying: `If the rule is prescribed which in its administration works out the result, that is sufficient; but to refer the making of the rule to another authority would be in excess of legislative authority.' (Cooley on Taxation, 50.)
"In Harriman v. The State, 2 G. Greene (Iowa), 270, where the question was as to the constitutionality of an Act authorizing judges to hold special terms of the District Court where the Constitution provided that such terms of the District Court should be held `at such times and places as might be prescribed by law,' it was said: `But, had the Legislature conferred upon the judges by statute authority to prescribe the times generally of holding their courts, would it not still be done by authority of law? it would still be a regulation emanating from the supreme legislative and only authorized power, within the general meaning and spirit of the organic law, if not within its strict letter.'
"These are authorities from other States. Our own Supreme Court has given expression to its views upon the subject in perfect harmony with the authorities cited, if not in equally as emphatic and pronounced language," citing San Antonio v. Jones, 28 Tex. 19 [28 Tex. 19], quoting the language of that opinion hereinbefore copied approvingly.
So it is seen when the question was first presented to this court, the "old court," Judges White, Hurt and Willson, adopted the rule announced in the case of San Antonio v. Jones, supra, which holds that legislation of the character that gives to the voters the permissive right to accept or reject the provisions of a law, as is done in this pool room case, is not unconstitutional, and not the rule announced in the Swisher case.
Again, in the case of Ex parte Lynn, 19 Texas Crim. App., 293, when the constitutionality of our local option law prohibiting the sale of intoxicating liquors on the very grounds and all the grounds relied on by relator in this case, Judges White, Hurt and Willson say, in an opinion by Judge Willson: "It is claimed that the local option law is unconstitutional, because it is violative of sections 15, 16, 17 and 19 of our Bill of Rights, and of article 5, and section 50 of article 14, of the amendments to the Constitution of the United States." The court says:
"The principal argument urged in support of this position is, that the effect of the local option law is to take or damage private property for public use, without compensation to the owner, and without due course of law. There is strong reasoning in support of the position, and, were it an original question, this court would be inclined to hold that the local option law is an infringement of section 1, of our Bill *Page 339 of Rights, which provides that `no person's property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, unless by the consent of such person,' etc. We would be inclined to adopt the views and reasoning of Judge Comstock, so clearly and ably expressed in the case of Wynehamer v. The People, 3 Kernan (N.Y.), 378. But opposed to these views there is a strong and almost uniform array of authorities which unequivocally declare that laws such as our local option law are within the scope of the police powers of a State, and do not take, damage or destroy private property for public use within the meaning of that provision of the organic law, and do not infringe upon any other provision of constitutional law.
"Upon this subject Mr. Cooley, in his work on Constitutional Limitation, says, after discussing the license cases decided by the Supreme Court of the United States (5 Howard, 504): `It would seem from the views expressed by the several members of the court in these cases that the State laws known as prohibitory liquor laws, the purpose of which is to prevent altogether the manufacture and sale of intoxicating drinks as a beverage, so far as legislation can accomplish that object, can not be held void as in conflict with the power of Congress to regulate commerce, and to levy imposts and duties. And in several cases it has been held that the fact that such laws may tend to prevent, or may absolutely preclude, the fulfillment of contract previously made, is no objection to their validity. Any change in the police laws, or, indeed, in any other laws, might have a like consequence. The same laws have also been sustained when the question of conflict with State Constitutions, or with general fundamental principles, has been raised. They are looked upon as police regulations, established by the Legislature for the prevention of intemperance, pauperism and crime, and for the abatement of nuisances. It has also been held competent to declare the liquor kept for sale a nuisance, and to provide legal process for its condemnation and destruction, and to seize and condemn the building occupied as a dramshop on the same ground. And it is only where, in framing such legislation, care has not been taken to observe those principles of protection which surround the persons and dwellings of individuals, securing them against unreasonable searches and seizures, and giving them a right to trial before condemnation, that the courts have felt at liberty to declare that it exceeded the proper province of police regulation. Perhaps there is no instance in which the power of the Legislature to make such regulations as may destroy the value of property, without compensation to the owner, appears in a more striking light than in the case of these statutes. The trade in alcoholic drinks being lawful, and the capital employed in it being fully protected by law, the Legislature then steps in, and, by an enactment based on general reasons of public utility, annihilates the traffic, destroys altogether the employment, and reduces to a nominal value the property on hand. Even the keeping of that, for the purposes of sale, becomes a criminal offense; *Page 340 and, without any change whatever in his own conduct or employment, the merchant of yesterday becomes the criminal of today, and the very building in which he lives and conducts the business, which to that moment was lawful, becomes the subject of legal proceedings, if the statute shall so declare, and liable to be proceeded against for a forfeiture. A statute which can do this must be justified upon the highest reasons of public benefit; but whether satisfactory or not, the reasons address themselves exclusively to the legislative wisdom? (Cooley on Const. Lim., pp. 727, 728.) Mr. Mills, in his standard work on Eminent Domain, says: `The manufacture and sale of intoxicating liquor may be declared unlawful and the liquor forfeited. The fact that buildings and machinery devoted to the manufacture of liquor thereby become greatly reduced in value does not call for compensation to the owner.' (Mills on Em. Do., 8.)
"The above quoted texts are abundantly and overwhelmingly supported by adjudicated cases in a number of the States of the Union. It would be an unprofitable consumption of time to review these cases in detail. They are collated in an exhaustive note to the case of Commonwealth v. Kimball, reported in 35 Am. Dec., p. 331 et seq. (See also 12 Am. Law Register, 129.) By the great weight of authority it is established too firmly and emphatically to be now questioned, that a law such as our local option law is constitutional legislation, and, whatever may be the strength of the reasoning against the correctness of these authorities, the matter is stare decisis."
While we have a provision in our Constitution commanding the Legislature to enact this character of law in regard to intoxicating liquors, yet we are about the only State in the Union having such a provision in its Constitution, and yet these laws have been uniformly upheld and if it may thus be applied to intoxicating liquors because subject to the police power, then it may be applied to any other subject or thing that is subject to regulation and control under the police power of a State. The rule is thus stated by Mr. Lewis, a well known text-writer, citing the authorities named.
"Although there is some conflict of authority, the great weight thereof tends to firmly establish the doctrine that though the Legislature can not delegate its power to enact laws, yet whether or not an enacted law shall become operative may be made to depend upon the popular will of the citizens of the place or locality where the statute is intended to operate, and, generally speaking, an Act of the Legislature affecting the people of a certain locality or of the whole State is not unconstitutional or invalid, simply because, by its terms, it is to take effect only after it shall have been approved by a majority of the popular vote of the people of the locality where it may take effect. Such a statute, says the great majority of the cases, is not an unlawful delegation by the Legislature of its power to enact laws: Hobart v. Butte Co. Supervisors, 17 Cal. 23; Robinson v. Bidwell, 22 Cal. 379; People v. Solomon, 51 Ill. 37; Erlinger v. Boneau, 51 Ill. 94; Clarke v. Rogers, 81 Ky. 43; State v. *Page 341 Pond, 93 Mo., 606; State v. Hoagland, 51 N.J.L. 62, 6 A. 166; Noonan v. Freeholders, 51 N.J.L. 454, 18 A. 117; State v. County of Hudson, 52 N.J.L. 398, 20 A. 255; Clarke v. City of Rochester, 5 Abb. Pr., 107; Smith v. McCarthy, 56 Pa., 359; State v. Copeland, 3 R.I. 33; Louisville, etc., R.R. Co. vs. Davidson County Court, 1 Sneed, 637, 52 Am. Dec., 424; State v. Parker,26 Vt. 357; Rutter v. Sullivan, 25 W. Va. 427; State v. O'Neill,24 Wis. 149; State v. City of Janesville, 26 Wis. 291. The Legislature has power to pass a conditional statute and to make its taking effect depend upon some subsequent event, and it may also provide within what time an act may be done, if done at all. Making certain provisions of an Act depend upon a vote of the people of a county does not delegate to the people the power to pass or repeal the Act, which is a valid statute from the time of its passage and approval, especially where the Legislature itself provides that if the provisions of the Act be not accepted within the period named therein, they shall not thereafter be carried into effect: People v. McFadden, 81 Cal. 489, 15 Am. St. Rep., 66, 22 P. 851. The reasons for the rule are well stated in State v. Pond, 93 Mo., 606, 6 S.W. Rep., 469, to be that while the rule that the Legislature is alone invested with the power to make laws and can not delegate its authority to the people does not admit of question or doubt, yet another rule is as firmly established; namely, that the Legislature may enact a law to take effect or go into operation, on the happening of a future event or contingency, and such contingency may be a vote of the people; and a local option act providing that any county, or town, or city of a class named, may, by a majority vote, place such county, town or city under the operation of the law, it does not refer to them the question of passing a law. The Legislature has already done this, and only called upon them to decide by a vote whether they will accept the provisions of a law regularly enacted by both houses of the Legislature and approved by the Governor. It is the law itself which authorizes the vote to be taken, and when taken, the law, and not the vote, declares the result which shall follow the vote. The vote is the means provided to ascertain the will of the people, not as to the enactment of the law, but whether it shall take effect, and if the majority vote against it, the law and not the vote, declares the result. The vote springs from the law, and not the law from the vote. In an early California case it was decided that where a law is passed providing that certain acts shall be done upon the contingency of the vote of the electors of a certain district, the vote upon such proposition is not an Act of legislation, but simply an event upon the happening of which the law is to take effect: Robinson v. Bidwell, 22 Cal. 379.
"The power to enact laws necessarily includes the right in the lawmaking power to determine and prescribe the conditions upon which the law in a given case shall come into operation or be defeated, and this contingency may as well be the result of the vote of the people of the locality to be affected by the law as any other: People v. Salomon, *Page 342 51 Ill. 37. Hence, it is fairly within the scope of legislative power to prescribe, as one of the conditions upon which the law in a given case shall come into operation or be defeated, that it shall depend upon a vote of the people of the locality to be affected by its provisions: Erlinger v. Boneau, 51 Ill. 94."
Again it is said by the same author: "A local option liquor law authorizing the municipal divisions of the State to decide by popular vote whether a prohibitive or restrictive liquor law shall be in force within their limits, if it is a complete enactment in itself, requiring nothing further to give it validity, and depending upon the popular vote only for a determination of the territorial limits of its operation, is a valid and constitutional exercises of the legislative power. To this effect the authorities are numerous and uniform: Boyd v. Bryant, 35 Ark. 69, 37 Am. Rep., 6; State v. Wilcox,42 Conn. 364, 19 Am. Rep., 536; Territory v. O'Connor, 5 Dak., 397, 41 N.W. Rep., 746, 3 L.R.A., 355; Caldwell v. Barrett, 73 Ga. 604; Groesch v. State, 42 Ind. 547 (in effect overruling Mesheimer v. State, 11 Ind. 482; Maize v. State, 4 Ind. 342; State v. Forkner, 94 Iowa 1, 62 N.W. Rep., 772, 28 L.R.A., 206; Commonwealth v. Weller, 14 Bush, 218, 29 Am. Rep., 407; Gayle v. Owen County Court, 83 Ky. 61; Fell v. State, 42 Md. 71, 20 Am. Rep., 83; Slymer v. State, 62 Md. 237; Commonwealth v. Dean,110 Mass. 357; Feek v. Bloomingdale, 82 Mich. 393, 47 N.W. 37, 10 L.R.A., 69; State v. Cooke, 24 Minn. 247, 31 Am. Rep., 344; Leoman v. Peyton, 64 Miss. 161, 8 So. 235; Schulherr v. Bordeaux, 64 Miss. 59, 8 So. 201; State v. Pond, 93 Mo., 606, 6 S.W. Rep., 469; Ex parte Handler, 176 Mo., 383, 75 S.W. Rep., 920; In re O'Brien, 29 Mont. 530, 75 P. 196; Paul v. Gloucester, 50 N.J.L. 287; State v. Rouch, 47 Ohio St. 478; Stevens v. State, 61 Ohio, 597, 56 N.E. Rep., 478; Fouts v. City of Hood River, 46 Or. 492, 81 P. 370, 1 L.R.A. (N.S.), 483; Locke's Appeal, 72 Pa., 491, 13 Am. Rep., 716; State v. Barber (S.Dak.), 101 N.W. Rep., 1078; Ex parte Lynn, 19 Texas Crim. App., 293; Ray v. State, 47 Tex.Crim. Rep. 83 S.W. Rep., 112; State v. Parker, 26 Vt. 357; State v. Scampini, 77 Vt. 92,59 A. 201; Savage v. Rase, 84 Va. 619, 5 S.E. Rep., 565. The above cited cases generally maintain that such a local option liquor law is not unconstitutional as a delegation of legislative power to the people, since the reference to the voters is not for the purpose of enabling them to make a law, but simply and merely to accept or reject by their vote its provisions in their particlar district or locality: Caldwell v. Barrett, 73 Ga. 604; Groesch v. State, 42 Ind. 547; Santo v. State, 2 Iowa 165, 63 Am. Dec., 487; Sparks v. Commonwealth, 13 Bush., 485; Schulherr v. Bordeaux, 64 Miss. 59, 8 So. 201; In re O'Brien,29 Mont. 530, 75 P. 196; Savage's Case, 84 Va. 619, 5 S.E. Rep., 565; Weil v. Calhoun, 25 Fed., 865. * * * Geebrick v. State, 5 Iowa 491. Although a general local option liquor law may be adopted in some parts of the State and rejected in others, it is not for that reason unconstitutional, as lacking in uniformity, *Page 343 provided it is submitted in the same way to all the counties or other political divisions of the State; nor is such a law unconstitutional as constituting a private local or special law: Territory v. O'Connor, 5 Dak., 397, 41 N.W. Rep., 476, 3 L.R.A., 355; State v. Forkner, 94 Iowa 1, 62 N.W. Rep., 772, 28 L.R.A., 206; Groesch v. State, 42 Ind. 547; State v. Pond, 93 Mo., 606, 6 S.W. Rep., 469; Ex parte Swann, 96 Mo., 44, 9 S.W. Rep., 10; In re O'Brien, 29 Mont. 530, 75 P. 196; Paul v. Gloucester,50 N.J.L. 585, 15 A. 272, 1 L.R.A., 86; Cordon v. State, 46 Ohio St. 607, 23 N.E. Rep., 63, 6 L.R.A., 749; Lloyd v. Dollisin, 23 Ohio C.C., 571; State v. Barber (S.Dak.), 101, N.W. Rep., 1078."
Relator also refers us to the case of Ex parte Massey,49 Tex. Crim. 60, and asks why not follow the decision of the court in that case or expressly overrule it, so that the bar may understand what is the holding of the court. We always thought when a case was once overruled it was not necessary to do so again. In the Massey case this court held that the law passed prohibiting the solicitation of orders for intoxicating liquors was invalid because it violated the Federal Constitution in that it was an interference with interstate commerce. When construing the constitutions and statutes of another State, we have always understood the rule to be that the construction placed on the Constitution by courts of that State should govern. In the case of Delamater v. South Dakota, 205 U.S. 93 (5 Law. Ed., 724), the Supreme Court of the United States in an opinion by the present Chief Justice, Justice White, held that a statute prohibiting the soliciting of orders for intoxicating liquors in territory where prohibition was adopted was not violative of the Constitution and statutes of the United States since the passage of the Wilson Act adopted in 1890. Being of the opinion that under the well known rules of construction, that the construction placed on the Federal Constitution and the laws of the United States by the Supreme Court of the United States was binding and should be followed, this court, in the case of Edmanson v. State,64 Tex. Crim. 413, overruled the Massey case reported in the49 Tex. Crim. 60, and having done so once, we did not deem it necessary to do so again. In the Massey case Judge Brooks dissented, and Judge Henderson filed a concurring opinion, in which he held that the Legislature could only pass a law prohibiting the sale, and could pass no other law in aid thereof in local option territory. This court, in the case of Fitch v. State, 58 Tex.Crim. Rep., overruled the Massey case on that point, and says such a holding would be a "monstrous doctrine." An able and learned legal writer recently said in Case and Comment, after reviewing all the authorities on soliciting and taking orders since the adoption of the Wilson Bill: "The only case in any of the courts holding that a section of this kind is unconstitutional on the ground that it is an interference with the interstate commerce, is the case of Ex parte Massey,49 Tex. Crim. 60. The opinion is concurred in by only two justices, and Brooks, J., dissented." *Page 344
In the foregoing citation of authorities each and every question presented by relator is specifically decided against him as we read the law. Relator, however, asks us to consider the case of Wright v. Cunningham, a Tennessee case reported in 91 S.W. Rep., 293 — claiming that this case had not been overruled by the Tennessee court, if all the other cases cited by him from other States had been questioned or overruled. We have read this case carefully and thoughtfully, but it does not change our views of this question. In fact the force and strength of that opinion is seriously brought in doubt in a later opinion by the same court. State v. Evans, 122 Tenn. 187. The decisions of our State hold to the contrary (except the Swisher case hereinbefore discussed), and the reasoning of those cases we think is sound. Not only is this true, but in Arkansas on the west, the Tennessee Court is held to be wrong. Boyd v. Bryant, 35 Ark. 69; in Kentucky on the north, Clarke v. Rogers, 81 Ky. 43; in Mississippi on the south, Lemon v. Peyton, 64 Miss. 161; in North Carolina, Georgia and Virginia on the east. Cain v. Devine,86 N.C. 8; Caldwell v. Barrett, 73 Ga. 604; Savage's case,84 Va. 619, it is held not to be the law. In fact cases might be cited from all the surrounding States, as well as the other States in the Union, and if the court in Tennessee has not overruled that case, yet they have seriously impaired its force, and it stands almost solitary and alone now in so holding, and under such circumstances we do not think we would be justified in following it.
In the list of authorities cited in this and the original opinion will be found cases overruling or questioning the soundness of every case cited by relator, unless it be the Tennessee case, and it recognizes that the Legislature may pass laws to go into effect upon a future contingency, but holds that an election amongst those who are to be affected by the law, is not a contingency that should be recognized. In this we do not agree with that court, as do not most of the courts of last resort and all the law text-writers of today as hereinbefore shown.
The motion for rehearing is overruled.
Overruled.