The majority of this court, speaking through Judge Harper, have delivered two elaborate opinions upon the questions involved in this case, devoting over fifty typewritten pages to the discussion of same; and it is with some regret that I feel called upon to dissent from the conclusions reached by the majority. That regret is based upon the profound conviction that the decision is unsound, and does violence to the Constitution, and to the fundamental principles of our government. It is believed that the judgment and opinion of the majority is so out of harmony with the great weight of *Page 345 judicial authority in this State, is so much opposed to reason, law, and established principles, and is so revolutionary and fraught with possibilities of such deplorable consequences, that this dissent should embrace a full review of the grounds of that opinion.
In the original opinion of my brethren, it is a remarkable fact that it ignored many of the strongest cases cited in relator's brief from the courts of this State. In the opinion upon motion for rehearing, many of these cases are for the first time noticed, and it is sought to distinguish them from the instant case; but I shall attempt to show that this can not be successfully done.
The opinion of the majority seems to be grounded upon the proposition that the pool room statute is a "local option law," submitting to the voters a police measure, and that the provisions thereof making its operation and effect dependent upon the vote of the people, does not constitute a delegation of legislative authority either to make a law or to suspend a law. The opinion seems to proceed upon the theory that there is a distinction between local option laws and general laws affecting the whole State, as to the power of the Legislature to require or authorize the sanction of a popular vote, upon the expediency, effect and operation of the law. I take issue with my brethren upon this proposition, and insist that no such distinction exists in reason, or principle, as will be demonstrated at a later point in this opinion.
The doctrine that the Legislature, under our Constitution, is without power to submit to the voters of counties and subdivisions, local option laws, depending for their force and vitality upon a vote of the people, was first laid down by our Supreme Court in the case of State v. Swisher, 17 Tex. 441. This case has become a landmark in Texas jurisprudence, but it is sought by the majority to destroy or impair the force of that decision by the claim that it was not well considered, and that it has been since virtually overruled by the Supreme Court. To the first suggestion it may be replied that the Attorney-General of the State filed a thorough and elaborate brief in that case, citing the leading cases decided at that time, and admitted that the weight of judicial authority was against the validity of the legislation there considered. The court had the benefit of his brief, and the authorities cited therein, and it is clear from Judge Lipscomb's language that the court did consider, and had a perfect grasp of the meaning and effect of our Constitution. To demonstrate this, the following quotation from his opinion is sufficient:
"But, besides the fact that the Constitution does not providefor such reference to the voters to give validity to the Acts ofthe Legislature, we regard it as repugnant to the principles of the representative government formed by our Constitution. Under our Constitution, the principle of law-making is that laws are made by the people, not directly, but by and through their chosen representatives. By the Act under consideration, this principle is subverted, and the law is supposed to be made at least by thepopular vote of the people, leading inevitably to *Page 346 what was intended to be avoided, confusion and great popular excitement in the enactment of laws.
"There is no analogy between the Act of our Legislature and the various Acts of Congress, depending upon a future contingency of a rebellion, insurrection, foreign war, a treaty, or the acts of a foreign power. These do not depend upon the vote of theconstituency of Congress, but on a contingency over which they have no control. It is believed, however, that this supposed analogy is the vice of the opinion of the court of Vermont."
Here is intrinsic evidence that the attention of the court was centered upon the principles involved in the doctrine they were discussing, and that the holding was in line with the best considered cases at that date. The decision was by that great trio of judges of the first Supreme Court of Texas, Hemphill, Wheeler, and Lipscomb, conceded to have had no superiors, if indeed, they have had peers in the entire history of the Supreme Court of this State. It is respectfully asserted that a decision by that great court can not be discredited, and its authority denied, except upon the plainest ground of error, or else overruled by later decisions of the same tribunal. Neither of these conditions exists, as I shall undertake to show later.
Again, it is claimed by the majority that the language quoted from the Swisher case was obiter dictum, but an examination of the report of that case will show that this contention can not be sustained. Moreover, Judge Harper, more than once in the original opinion, refers to the fact that the Swisher case was decided in 1856, — as he expresses it, "in the long ago." But what has that to do with the proper solution of the great constitutional questions involved in this case? If the Swisher case was correctly decided, age but sanctifies it and strengthens its force. Great principles do not vary. Truth is changeless and immortal — "The eternal years of God are hers." I must enter my earnest protest against the destruction of this landmark of Texas jurisprudence on the ground of age.
Furthermore, it is evident from the statements in the majority opinion that in spite of the claim of obiter dictum, and of the alleged slight consideration of the question by the Supreme Court in the Swisher case, the majority of this court have been strongly impressed with the force and weight of that decision; because it is more than once stated in the opinion of the majority that this court would follow the doctrine of the Swisher case, had it not been practically overruled in later cases by the Supreme Court. At a later point in this dissent it will be shown that the Supreme Court of this State has never overruled, or even questioned the doctrine of the Swisher case, as applied to a statute such as was before the court in that case.
Another case cited in relator's brief is that Ex parte Farnsworth, 61 Tex.Crim. Rep., 135 S.W. Rep., 535, a decision by this court. The opinion was written, not "in the long ago," but in the near year 1911; and this court was then composed of the same members as now. It was *Page 347 fully concurred in by all the members of the court, and until the majority opinion was written in the instant case, and relied upon by relator, has never been questioned by either of my brethren.
It is said by the majority that the exact question now before us was not involved in the Farnsworth case; but it will be found that the case involved the validity of an ordinance of the City of Dallas, passed and put into operation under what is termed the "initiative and referendum" clause of the city charter. The validity of this ordinance was directly assailed in said case upon the ground that the charter provisions, authorizing ordinances to be enacted under the referendum clause, was an unconstitutional delegation of legislative authority to make and to suspend laws. The question discussed, therefore, was directly before the court, and the ordinance was on this ground declared void. It is true that the decision of the court was rested upon the further ground that the ordinance so passed, deprived the applicant of his property without due process of law. But that consideration does not impair in the least the force of the decision of this court upon the question of delegation of legislative authority. The decision was based upon both of the aforesaid grounds, and the case is as much authority for the one proposition as the other. I quote briefly from the language of the opinion in the Farnsworth case:
"It is equally certain that the people can not be reinvested by the Legislature with the functions of legislation conferred by them on a department of government, nor can the Legislature render the enactment of a law dependent upon the acceptance by the people by popular vote. See cases already cited. . . . The people in whom the power resided have voluntarily transferred its exercise, and have positively ordained and vested in the Legislature. To allow the Legislature to cast it back on the people would be a subversion of the Constitution, and would change the distribution of power without the action or consent of those who created the Constitution. . . . There is to be noted, however, a real or apparent exception to this rule, or doctrine. However, when correctly viewed, if it is an exception, it is an innovation on the general principle, which serves to emphasize and accentuate the truths of the main doctrine announced. This apparent exception is an innovation always to be found in the Constitution itself, and notably in those provisions of that instrument which relate to local option laws in regard to the sale of intoxicating liquors, and preventing stock running at large. Where this is the case, the referendum is the only rule of final enactment. The people under such exception, by majority, adopt or vitalize a Legislature's act in the territory to be affected. Unless expressly authorized so to do, these laws cannot be so enacted. State v. Swisher, supra, and cases already cited. . . ."
As before stated, this doctrine has never been questioned by the court until the majority opinion in the instant case was written; and the Farnsworth case has been accepted generally by the profession as meeting the approval of, and being the unanimous opinion of this court. *Page 348
It will thus be seen that not only the Supreme Court, but this court, has upheld the principle that local option or similar laws can not be submitted to the vote of the people for their sanction and vitality, except in those instances where the people have authorized this to be done in the Constitution itself. The whole history of the law of this State, constitutional and judicial, is a recognition and approval of the doctrine of the Swisher case. In every Constitution created subsequent to that decision the people have reserved in the Constitution the power to vote upon local option laws by positive commands to the Legislature in those special instances in which they desired to exercise the function of legislation. In not one of these Constitutions have the people changed the rule of decision in the Swisher case by enlarging the grant to the Legislature of legislative authority, so as to include the power of delegating its authority to make laws through the vote of the people, except in respect to local option liquor laws, local option stock laws, and a few other enumerated instances. In the earlier Constitutions the Legislature was expressly given the power to suspend laws, not only by its own act, but "under its authority." In the Constitution of 1876, even this right of delegation was taken away from the Legislature, by omitting the last quoted language; as has been frequently held by the court of Civil Appeals, Court of Criminal Appeals, and the Supreme Court of this State. This feature of the case, however, will be gone into at a later point.
Not only has the constitutional history of the State been adverse to the contention of the majority, and has recognized the principle decided in the Swisher case, but the Supreme Court of this State has itself expressly approved that decision. The doctrine announced there was again before the Supreme Court for consideration, in 1866, in the case of San Antonio v. Jones,28 Tex. 19. The Supreme Court, speaking through Chief Justice Moore, at page 52 of the Report, expressly approves the Swisher case in the following language:
"To sustain this assumption, he relies upon the doctrine laid down and recognized by this court in the case of State v. Swisher, 17 Tex. 441. The holding of this case isunquestionably sustained by sound reasons, as well as the highestauthority, and the question decided by it is regarded by us ascorrectly and conclusively settled."
Here is an unqualified approval by the Supreme Court of the doctrine of the Swisher case, as clear as human language could make it. And, when we consider that the statute involved in the Swisher case was, in all essentials, the same as the pool hall statute we are considering, and the only question decided in the Swisher case being the validity of a local option liquor statute, the Supreme Court, in San Antonio v. Jones, must be held to have approved the doctrine which would annul and declare unconstitutional the pool hall statute. The decision in San Antonio v. Jones, on the facts involved, is not in conflict with the holding in the Swisher case because the legislation was of an entirely different *Page 349 character, and this point was clearly recognized by the court in the later case.
Again, the Supreme Court upheld and recognized the doctrine of the Swisher case in Werner v. Galveston, 72 Tex. 22 — a decision rendered in 1888. To show this we quote the language of Mr. Justice Gaines, who spoke for the court:
"It is a well settled principle that the Legislature can notdelegate its authority to make laws by submitting the question oftheir enactment to a popular vote; and in State v. Swisher,17 Tex. 441, this court held an Act of the Legislature which authorized the counties of the State to determine by popular vote whether liquor should be sold in their limits to be unconstitutional."
The holding in the Swisher case was again recognized in Stanfield v. The State, 83 Tex. 317, a decision by the Supreme Court, and in quite a number of other cases; and wherever the question has come before this court and the Supreme Court, both courts have adhered to the rule laid down in that case. Indeed, they could not have done otherwise without destroying the representative form of government as set forth in the Constitution.
But my brethren contend that the Swisher case has been practically overruled in later decisions by the Supreme Court — notably in San Antonio v. Jones, supra; Johnson v. Martin,75 Tex. 33; Stanfield v. State, 83 Tex. 317 [83 Tex. 317], and Graham v. Greenville, 67 Tex. 62 [67 Tex. 62]. In my opinion, these cases are absolutely irrelevant; and their facts, and the legislation therein considered, serve to so clearly distinguish them from a case involving a legislative Act, authorizing a local option statute to be submitted to the voters, that I shall not undertake to review them seriatim. Suffice it to say, that these decisions are all along a line which is usually conceded to be an exception to the general doctrine that the Legislature is without power to delegate its authority to make or suspend laws. They all include statutes very analogous to the general incorporation statutes for the organization of city governments, which may be accepted or rejected by communities, and are generally recognized as not delegating the legislative power in a just sense. They may all be said, however, to be valid instances of the delegation of legislative authority, and they do not militate against the doctrine here contended for. The Legislature does not, in any of these instances, refuse to exercise its will and judgment upon the expediency and wisdom of the law, but decides those questions for itself; and merely authorizes the people, or their local representatives to create the instrumentalities oragencies upon which the law can operate. They are all perhaps proper future contingencies, all relating to the administration of the law — things upon which the Legislature could not be expected understandingly to legislate. Summed up, the Supreme Court, in these decisions, seems merely to recognize the right of the Legislature to provide means for the people to accept the provisions of general laws, already completely enacted by the Legislature, and relating to mattersof administration and municipal *Page 350 control. In none of the Acts considered in these cases were the voters permitted to say whether a particular business might be lawfully conducted throughout the State, or in any portions of the State, as is directly authorized in the pool hall statute. It might well be conceded, without trenching upon the doctrine of the Swisher case, that the framers of the Constitution, in the very nature of things, must have contemplated that in the vast multitude of details of internal improvement, or of municipal administration, the Legislature could not understandingly deal with the subject in precise rules of conduct laid down in general laws. Of necessity, the exercise of the legislative power in these respects must be committed to local authorities and bodies. In some States this power is conceded, because of the history of such legislation in those jurisdictions, and the traditional exercise of that power. This consideration will at least serve to explain many of the decisions of this character. At all events, the doctrine of these cases should be confined as authority to their peculiar facts; and the holding should not be further extended, because if made to apply to the general submission of local option statutes to the people, the doctrine that legislative power can not be delegated will be wholly subverted, and representative government will disappear in this State.
But not only has the Supreme Court approved the Swisher case, in the cases above referred to, and this court in Ex parte Farnsworth, but the rule has been further recognized by this court in Ex parte Massey, 49 Tex.Crim. Rep.. In that case, approving the Swisher case, Judge Henderson said: "This principle is reaffirmed in San Antonio v. Jones, 28 Texas, p. 19," and "In the case before us the people had no inherent power to legislate on the subject of local option prior to the adoption of article 16, section 20."
"As early as the case of State v. Swisher, it was held that theLegislature could not delegate to voters or the people the powerto pass laws in the absence of some constitutional provisionauthorizing this. And again, it was not until the adoption of article 16, sec. 20, in the Constitution of 1876, that power wasgiven in the organic law authorizing the delegation of power tothe qualified voters to enact local option in the territorytherein mentioned. . . . The people or the voters of the localitydid not have this before."
Here was a plain decision by this court that it takes express or implied authority in the Constitution, for the Legislature to submit local option laws to the people for their acceptance or rejection. This case was not even mentioned by the majority in their first opinion, although cited and quoted from in relator's brief. It was not noticed by the majority until relator's counsel, in their motion for rehearing, insisted that the Massey case should be either expressly overruled or followed. It is said in the opinion of the majority on rehearing that the Massey case had already been overruled, in Edmanson v. State, 64 Tex. Crim. 413, and in Fitch v. State, 58 Tex.Crim. Rep.. Unfortunately for my brethren the decision in neither of the latter cases overruled the *Page 351 Massey case, insofar as the question of the power of the Legislature to submit local option laws to the people, in the absence of express or implied authority in the Constitution, is concerned. The Edmanson case involved no such question, and there is not a line in the opinion of Judge Harper, speaking for the majority in the Edmanson case, which undertakes to question the correctness of the doctrine recognized in the language of Judge Henderson in Ex parte Massey quoted above. In the Fitch case, not only is there no overruling by Ex parte Massey, but the case is not even mentioned in any of the three opinions written therein. Therefore, we have additional authority of Ex parte Massey in support of the doctrine asserted in the Farnsworth case as the holding of this court. Other cases may be cited from this court; among them, Coombs v. State, 38 Tex.Crim. Rep.; Jannin v. State, 42 Tex.Crim. Rep.; Ex parte Powell, 43 Tex. Crim. 391; Fay v. State, 44 Tex.Crim. Rep..
There is another fundamental principle of law that has never been gainsaid, so far as I understand, but which was overlooked by the majority opinion — that is, that delegated authority can not be re-delegated by the power to whom the delegation was given. See 6 Vol. Am. Eng. Ency. of Law, pp. 1021-1022, and note 6 on p. 1021 for cited cases. Perhaps it may be well enough to collate them at this point: People's R. Pass Co. v. Memphis R. Co., 10 Wall. (U.S.), 50, opinion by Judge Clifford; Wayman v. Southward, 10 Wheat. (U.S.), 1; Bank of U.S. v. Halstead, 10 Wheat. (U.S.), 61; Field v. Clark, 143 U.S. 649; Ex parte Well,48 Cal. 279, 17 Am. Rep., 425; Ex parte Cox, 63 Cal. 21; People v. Nevada, 6 Cal. 143; Rice v. Foster, 4 Harr. (Del.), 479; Georgia R. Co. v. Smith, 70 Ga. 694; Maize v. State,4 Ind. 342; Meshmeier v. State, 11 Ind. 482; Santo v. State, 2 Iowa 165, 63 Am. Dec., 487; State v. Geebrick, 5 Iowa 491; State v. Beneke, 9 Iowa 203; State v. Weir, 33 Iowa 134, 11 Am. Rep., 115; Morford v. Unger, 8 Iowa 82; Auditor v. Holland, 14 Bush (Ky.), 147; State v. Gaster, 45 La. Ann., 636; Farnsworth Co. v. Lishen, 62 Me. 451; Brewer Brick Co. v. Brewer, 62 Mo., 62, 16 Am. Rep., 395; Bradshaw v. Lankford, 73 Md. 428; 25 Am. St. Rep., 602; People v. Collins, 3 Mich. 343; Senate, etc. v. Alpena County, 99 Mich. 117; State v. Simmons, 32 Minn. 540; State v. Young, 29 Minn. 551; Montross v. State, 61 Miss. 429; State v. Wilcox, 45 Mo., 458; State v. Hayes, 61 N.H. 264; State v. Hudson County Ave. Com'rs., 37 N.J.L. 12; Thorne v. Cramer, 15 Barb. (N.Y.), 112; Bradley v. Baxter, 15 Barb. (N.Y.), 122; Barto v. Himrod, 8 N.Y. 483, 59 Am. Dec., 506; People v. Stout, 23 Barb. (N.Y.), 349; State v. New York, 3 Duer (N.Y.), 119; Atlantic Express Co. v. Wilmington, etc., R. Co., 111 N. Car., 463; 32 Am. St. Rep., 805, 55 Am. Eng. R. Cas., 498; Cincinnati, etc., R. Co. v. Clinton County, 1 Ohio St. 77; Brown v. Fleischner, 4 Oregon, 132; Parker v. Com., 6 Pa. St., 507, 47 Am. Dec., 480; Com. v. McWilliams, 11 Pa. St., 61; Locke's Appeal, 72 Pa. St., 491, 13 Am. Rep., 716; Com. v. Judges, 8 Pa. St., 391; Com. v. Painter, 10 Pa. St. 214; Borough *Page 352 of West Philadelphia, 5 W. S. (Pa.), 283; State v. Copeland,3 R.I. 33; State v. Armstrong, 3 Sneed (Tenn.), 634; State v. Swisher, 17 Tex. 441; Willis v. Owen, 43 Tex. 41 [43 Tex. 41]; State v. Parker, 26 Vt. 357; 8 Cyc., 841, note 18; L.R.A., vol. 11, p. 582, and note for collation of authorities. Copying from the foot note, this language is found: "It is a maxim of the law that a delegated authority can not be re-delegated." Broom, Legal Maxims, 839; 7 Cent. Rep., 644; 63 Pa., 77; 106 N.C. 258; 33 W. Va. 536. Hence, the power of the Legislature to enact laws can not be re-delegated to the people themselves. But this does not apply with reference to legislative control of municipal corporations. Then cites quite a number of authorities. And even in the latter case, the rule is that powers so delegated to the subordinate local authorities are to be strictly construed, and all reasonable doubt resolved against the grant. This has often been so decided in this State. Branch Crim. Laws, sec. 207, for cases. It is also well settled that a provision of the Constitution designed to restrain and confine legislation within certain definite limits is not subject to the unrestrained legislative will, for if by reason of errors of judgment or for any other cause they exceed the constitutional limit in making appropriations, or in authorizing expenditures or other legislation such as excessive acts are mere nullities. 52 N.Y. 563; 103 U.S. 645; 9 Col., 412; 13 Col. 323-324.
If the Constitution is to be the guiding and superior rule and its provisions to dominate all delegated authority such as the executive, legislative and judicial branches of the government, then it must be clear that the Legislature has not been clothed with authority to re-delegate its authority to the people or to any department of government.
It is not necessary here to notice the question of legislative authority over municipal corporations. It is not involved. I wish to add further in this connection that in all the cases by the Supreme Court and Court of Criminal Appeals it has been expressly held that the Legislature in authorizing cities to proceed to enact ordinances, and granting power to cities in their charters to do this or that thing in reference to their local matters, that such authority must be subordinate to the Constitution and not antagonistic to the general laws of the State. Wherever there is a conflict between the city ordinance or powers granted, or purported to have been granted in city charters, and the general laws of the State, the State law is supreme, and the charter provision or the ordinance, as the case may be, is null and void. There are many of these cases collated in Harris's Ann. Const., on page 208, and ending on page 212. I refer to this to emphasize the fact that my brethren have inadvertently, or through a misunderstanding, used the decisions of this and other courts, upholding power granted in city charters, in sustaining their position in upholding this local option law. The reason for this distinction ought to be and is obvious. It has been written about so much, and in so many States of the Federal Union in addition to our own, that there ought not to be any misapprehension. In other words, my brethren have taken vast numbers of decisions throughout other States from their *Page 353 proper place, and where correctly deciding the question at issue in them, and have used them to uphold a proposition that those decisions have recognized as not coming within the announced rule.
As sustaining my position that all inherent power resides in the people, and that the Legislature possesses only delegated power, I quote the following language by Chief Justice Brown, in State v. Texas Brewing Co., 106 Texas ___, 157 S.W. Rep., 1167:
"All powers of government reside in the people, and the officials of the different departments exercise delegated authority; however, the Legislature can exercise all legislative power not prohibitd by the Constitution. But 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, and we must so consider the local option law adopted by the voters of Clay County, for that, like theConstitution, is the exercise of primary sovereignty; therefore, what is prohibited by the local option law to be done in Clay County, as to sale of intoxicating liquors, can not be authorized by the Legislature to be done there." (Italics mine.)
More important still, Judge Brown here recognizes the fundamental question in this, namely: that in voting upon local option laws the people "exercise the sovereign power of legislation."
The local option laws in Texas have always been held unconstitutional throughout its history unless provided by the Constitution. My brethren seem to have either confounded or failed to recognize the distinction between delegation of powerand reserved rights by the Constitution. The legislative department of this State has been clothed by art. 2, sec. 1, of the Constitution only with legislative authority. That authority is full and ample, unless expressly or by implication curtailed or limited by provisions of the Constitution. Redelegation is not granted. It is useless to discuss those matters. Wherever the Constitution limits the power of any department of the government, that ends the matter. It is not debatable further. The judicial, the legislative and executive departments are creatures of the Constitution, which is itself a creature of our people, and acting under such delegated authority are confined within their scope of authority. The Constitution has not delegated to the law-making department authority to delegate its authority, even to the people themselves. Where the people have decided to exercise their authority directly in making the laws or putting them in operation, they have reserved that right in the Constitution. This is a command by the people to the Legislature, and not a delegation of power to the people by the Legislature. The people reserved this power. The Legislature acts by command of the people in enacting these laws. The people reserve the right to put them in operation. It is a direct, positive negation of the proposition that the Legislature is delegating authority, and is a *Page 354 complete answer to any idea of delegated authority to the people by the Legislature, and expressly excludes the idea of such delegation.
But where the people have not reserved in the Constitution the right to vote local option laws of a certain character, such as the pool hall statute, the attempt by the Legislature to enforce this principle is a manifest attempt to delegate its own delegated authority. In other words, it is an attempt to confer upon the people the primary right of sovereignty, in the matter of legislation, where they have not reserved that right, and to thereby assume authority by the Legislature to act as from original and inherent power. This calls to mind the memorable admonition of that great English statesman, Edmund Burke, "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 popular magistracies have been perverted from their purposes." Legislative assumption of original or inherent power is subversive of our government. The people alone have inherent power; the Legislature can act only from delegated authority.
It may be stated, as emphasizing the proposition further, that it is not delegated authority by which the people vote on local option laws, under constitutional provisions; that it has been held by all the courts that where such a law has been put into operation, it remains operative until the people in the same territory vote it out, thus clothing it with the sanctity of constitutional authority itself.
There is another ground upon which the pool hall statute must be held unconstitutional, very much akin to the first proposition discussed in this opinion; that is, that the said statute is repugnant to article 1 of section 28, of the Constitution of 1876, which reads as follows:
"No power of suspending laws in this State shall be exercised except by the Legislature."
In prior Constitutions, the language was as follows:
"No power of suspending laws in this State shall be exercised except by the Legislature, or its authority."
The difference in the language of the present Constitution and that of previous Constitutions is striking, and its significance is unmistakable. To my mind, this change in the fundamental law is conclusive that the people desired to make the Legislature the sole and exclusive repository of the power to suspend laws in this State, except where the people reserved in the Constitution this right of suspending laws themselves directly, by the submission of local option laws. When the people amended this Constitution, by expunging the words "or its authority," it was done with the express purpose of preventing the Legislature from authorizing other departments or functions of the government to suspend State laws. Under former Constitutions, it was expressly permitted to the Legislature to delegate such authority, but for reasons which are still fresh in the minds of the people of this State, and have to do with the gloomy days after the war, the people saw fit to withdraw from the Legislature the power to delegate this important authority. *Page 355 They did not even reserve to themselves, by the remotest implication, the general power to suspend laws, but conferred an exclusive agency upon the Legislature, revocable only through constitutional amendment.
This court well knows how jealous the people of this State have been in the amendment of their great charter, the Constitution, and it is impossible to assume that they made the change above pointed out except for a deliberate and solemn purpose. The only conceivable purpose or effect of the omission of the words "or its authority," is that the people desired to maintain pure and unalloyed the representative principle in the suspension of their law.
There is an unbroken line of authorities in this State, from Courts of Civil Appeals, the Supreme Court, and the Court of Criminal Appeals, nullifying and striking down acts of the Legislature which have sought to confer upon other agencies the function of suspending State laws. Two notable civil cases are Burton v. Dupree, 19 Texas Civil App., 275, 46 S.W. Rep., 272, and Brown Cracker Co. v. City of Dallas, 104 Tex. 290 [104 Tex. 290], 137 S.W. Rep., 342. In the first one cited, the Court of Civil Appeals of this district, in an opinion delivered by Justice Key, held void the charter provisions of the City of Waco, and an ordinance passed thereunder, seeking to confer and exercise the power of licensing and locating houses of prostitution. The ground of the decision was that the Legislature had passed a State law making it a crime to keep, or permit the keeping of houses of prostitution, and that the said charter provisions, and the ordinance passed under it, was an unconstitutional delegation by the Legislature of power to the city authorities to suspend a State law. In Brown Cracker Co. v. City of Dallas, 104 Tex. 190 [104 Tex. 190], 137 S.W. Rep., 342, the Supreme Court held void an ordinance of the City of Dallas, passed under charter authority, which sought to legalize and segregate the keeping of disorderly houses. The court based its decision in this case upon the ground that the charter provision authorizing the ordinance gave authority to the city to suspend a State law on the same subject, and that the same was, therefore, in violation of the Constitution. Chief Justice Brown, in his opinion, used the following language:
"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 the 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 not now 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 *Page 356 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 of 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. The Legislature had no authority to delegate that power to the city."
To the same effect is the case of McDonald v. Denton, supra, and as stated by Chief Justice Brown in Brown Cracker Co. v. City of Dallas, the Court of Criminal Appeals has also decided this question the same way.
In the case of Ex parte Ogden, 43 Tex.Crim. Rep., this court held an ordinance of the City of Beaumont denouncing a punishment for permitting turf exchanges, or places for selling pools on horse races, unconstitutional and void, on the ground that the Legislature had licensed turf exchanges, or the selling of pools on horse races, and that it was beyond the power of the Legislature to delegate authority to a municipal corporation to pass ordinances repealing or suspending the State law. Several cases are cited in the opinion in Ex parte Ogden in support of the holding of this court. I quote this language from the opinion:
"This ordinance simply makes it a violation of law to carry on a turf exchange, or sell pools on horse races in the places mentioned. It being a legitimate business — one legalized by the State — the city could not, even in this indirect manner, inhibit it. It will be noted that the ordinance in question was not one of regulation, but one of inhibition."
In Arroya v. State, 69 S.W. Rep., 503, this court followed the decision in Ex parte Ogden, and the cases cited therein. Arroya was convicted for selling liquor on Sunday in the City of Dallas, in violation of the State law. He filed a plea to the jurisdiction of the County Court, and in support of his said plea, invoked certain provisions of the charter of Dallas, and an ordinance passed thereunder. These charter provisions and ordinance were in conflict with the State law prohibiting the operating of saloons on Sunday. I quote the following from the opinion in that case:
"Thus we are confronted with the proposition, which appellant assumes to be correct, that the Legislature has authority to delegate power to the city council of the City of Dallas, under its special charter, to supersede and set aside any State law which may come within the terms of the delegated authority. Article 1, section 28, of the Constitution provides: `No power of suspending laws in this State shall be exercised except by the Legislature.' Prior to 1874 this section was as follows: `No power of suspending laws in this State shall be exercised, except by the Legislature, or its authority.' It may have been the law, or a correct *Page 357 contention, under prior Constitutions in this State, to assume and assert the proposition here contended for by appellant; but with the change of the Constitution the right of the Legislature to delegate its authority ceased to exist. It is not necessary to go into the history of the reasons for this change in the Constitution, for it is too well known and too fresh to be easily forgotten. Without reviewing the history of the oppressions which grew out of the suspension of laws by reason of such delegation of legislative authority and the declaration of martial law scarcely more than a quarter of a century in the past, it is sufficient to state the fact of such occurrences, and that this change in the organic law swiftly followed, prohibiting such action by the Legislature. The Legislature is but one of the three co-ordinate branches of this government, and has no authority to set aside and override the express limitations upon its power. This matter has been reviewed in our State by our courts of last resort, and the matters fully and freely discussed, the result of those decisions being adverse to appellant's contention. Therefore we deem it unnecessary to enter into a further discussion of the matter. In support of our conclusion, holding that the position assumed by appellant is not the law, we cite the following authorities: Ex parte Ogden,43 Tex. Crim. 531, 66 S.W. Rep., 100; Burton v. Dupree, 19 Texas Civ. App. 275[19 Tex. Civ. App. 275], 46 S.W. Rep., 272; Ex parte Coombs, 38 Tex.Crim. Rep., 44 S.W. Rep., 854; Ex parte Ginnochio, 30 Texas Crim. App., 584, 18 S.W. Rep., 82; Ex parte Sundstrom, 25 Texas Crim. App., 133, 8 S.W. Rep., 207; Bohmy v. State, 21 Texas Crim. App., 597, 2 S.W. Rep., 886; Flood v. State, 19 Texas Crim. App., 584; Angerhoffer v. State, 15 Texas Crim. App., 613, 6 Am. Eng. Enc. Law, p. 1021-1029, and notes for collated authorities; 8 Cyc., p. 840-1 and notes. Under these authorities, and under the Constitution, the Legislature had no right to delegate its authority in a municipal charter to set aside, vacate, suspend, or repeal the general laws of this State. Any Act of the Legislature which seeks to confer such jurisdiction upon a municipal corporation is violative of the Constitution, and therefore void." See Fay v. State, 44 Tex.Crim. Rep.; Harris' Ann. Const., 208-212 for cases.
It is impossible to escape the conclusion that, under this line of authorities, the pool hall prohibition statute must fall, as being an unconstitutional delegation to the voters of counties and subdivisions to suspend a State law. Article 7355, section 8, of the Revised Statutes of 1911, legalizes, licenses and taxes the business of keeping and exhibiting billiard and pool tables in every county in this State, and an occupation tax is imposed thereon, to-wit: $20 for every billiard or pool table used for profit. By other provisions of the occupation tax statute, counties, and incorporated cities and towns, are each authorized to impose one-half of this tax upon said occupation.
To permit the voters of any given county or subdivision thereof in this State, by direct vote, and without action by the Legislature itself, to declare such business unlawful, and to revoke the right to pursue same *Page 358 by a licensed keeper of such tables, who has paid his taxes, or by any one who might choose to pay said occupation taxes and follow said business, is clearly to delegate to the people of such county or subdivision the power to suspend a general law of the State. Under the operation of said statute, the people, by direct vote, may not only suspend the effect and operation of the general law licensing the keeping of pool tables passed by the Legislature, but, indeed, they are permitted to go further, and to repeal the law in that territory for a period of two years at least, and perpetually, if a majority should continue to favor the prohibition. There is absolutely no difference in principle between the questions embraced in the Brown Cracker Co. case, the Arroyo and Ogden cases, and others on that line, and those involved under the pool hall prohibition statute. In those cases the court in effect held that when the Legislature makes certain things illegal by a general law, the Constitution forbids the Legislature to delegate to the people, or any portion thereof, the authority to make the same legal, and thus suspend or repeal such general law. It is a corollary of this proposition, that when the Legislature has declared a thing legal by a general law (for example, the keeping of pool tables for profit), it is beyond the power of the Legislature to confer authority upon the people, or any part thereof, to declare the same illegal by direct vote, and thereby suspend and repeal the general law, in the territory covered by the election.
The absurdity of such a grant of power by the Legislature, in view of the present constitutional provisions, is plain. This might have been done under former Constitutions, as pointed out in Brown Cracker Co. v. Dallas, and other cases, but the people have seen fit in the present Constitution to invest such power in the Legislature alone, which power it can not surrender or delegate, except in special instances named in the Constitution. Therefore, upon this additional ground, must the said statute be declared unconstitutional and void.
The majority, however, strongly undertake to distinguish the above line of decisions from the instant case, and also earnestly contend that the pool hall local option statute does not suspend the State law. By a line of reasoning too occult for me, it is sought to be demonstrated that the pool hall local option statute was passed since the occupation tax statute licensing and taxing the business; and being the last expression of the legislative will, should be allowed to govern and be the law. The majority opinion here indulges in a lengthy dissertation upon the well recognized and generally accepted canon of statutory construction that two laws passed upon the same subject should be harmonized and reconciled if possible; but, if irreconcilable, the later law repeals the former. All this labor might well have been spared, as the rule stated is not questioned. The criticism is directed, not at the doctrine itself, but at the application which is sought to be made of it. There is no doubt that the pool hall local option statute was enacted last by the Legislature, and if expressing its own will and judgment, there could be no question that it would, when in conflict with the former *Page 359 law, repeal or suspend it. The trouble is, that the Legislature has not done this. It has committed to another agency the function of declaring whether the pool hall local option statute shall take effect and supersede the State licensing and taxing statute. That it has done this is easily demonstrable. Take a given county; for instance, Travis. Until the people shall vote in the prohibition of pool halls, the license and tax statute is in full effect and operation, and legalizes the business. Immediately upon the affirmative vote of the people being had upon the proposition of prohibiting pool halls, the State license or tax law is superseded in that territory. Upon this assumption of fact, what becomes of the State license, or tax law in Travis County? It is not accurate to say that it has been wholly repealed, for the reason that under the provisions of the pool hall local option statute itself, the people of that county, after the expiration of a given time, may again assemble at the polls and vote out the prohibition against pool halls. Thereupon, the State license or tax law automatically goes back into force and effect in that territory. Is it not clear that the State law has been, in the meantime suspended — in a state of "suspended animation" so to speak? No amount of elaboration could make the point clearer; and, the effect of the vote of the people in a given territory, in favor of the prohibition of pool halls, has the direct and immediate effect of suspending the State law. I will close this part of the discussion with a reference to and quotations from a few cases. First, Rathburn v. State, 88 Tex. 281 [88 Tex. 281] — a Supreme Court decision. In that case a similar question was before the Supreme Court, and Mr. Justice Denman, speaking for the court, said: "The two Acts are essentially antagonistic, and can not both be operative in the same locality at the same time. We are of the opinion that the operation of the former (license law) Act is suspended in any given locality while the latter (local option law) is in force therein."
And as Chief Justice Brown said, in Brown Cracker Co. v. Dallas, supra, in speaking upon a similar question: "The antagonism between the ordinance and the law is as emphatic as that between life and death. It follows logically that both laws can not be in force in that territory at the same time, and it devolves upon this court to determine which is to be maintained."
In Kerr v. Mohr, the Court of Civil Appeals at Dallas, after quoting with approval certain decisions of this court, said, "Under this rule the effect of the putting in force in a given territory of local option, is to suspend previous laws governing liquor selling in such territory. . . . The existing law governing the sale of liquor not having been repealed by the adoption of local option, but only suspended, a repeal of the local option statute would revive the former law."
As early as Robertson v. State, 5 Texas Crim. App., at page 162, this court, speaking of the relative force of liquor tax laws, and the local option law, states: "These laws are not only not in harmony, but are *Page 360 directly antagonistic, and so utterly repugnant to each other that both can not be of force in the same locality at the same time.
"Local option superseded, in the localities where it was adopted, all other laws on the subject, and expressly, as we have seen, repealed all laws in conflict with it.
"Rules of construction applicable to different Acts passed atthe same session of the Legislature, with reference to theirdifferent dates, do not apply here, for the reason above intimated, that under the Constitution, and the Act passed in pursuance of its provisions, the law could be put in force at any time in the future, whenever the voters of any locality should deem proper."
The same proposition was again announced by this court in the case of Atkinson v. State, 42 Tex.Crim. Rep..
My brethren also endeavor to uphold the proposition that there is no suspension of the State license law when the pool hall local option statute is adopted in a given territory; because the former is still in effect and operative in all the other counties and territory of the State. It is submitted that this reasoning is plainly fallacious. Suppose the case, that all the counties of the State should on the same day vote out the pool halls, as may be done under the pool hall statute, what would become of the State law licensing and taxing the business? Would it not be suspended entirely throughout the State? The answer is plain.
Again, my brethren seek to escape the force and effect of the unbroken line of decisions in this State upon the question of suspension of State laws by other agencies than the Legislature. While none of these cases were noticed in the first opinion of the majority, they are discussed in the opinion on motion for rehearing; and the majority did not seek to overrule either Burton v. Dupree, supra, Brown Cracker Co. v. Dallas, supra, Ex parte Ogden, supra, and Arroya v. State, supra. Indeed, they held that these cases were all correctly decided, but denied their application to the instant case. The discussion of these cases by the majority is very unsatisfactory, and the alleged ground of distinction between them is not attempted to be pointed out, and indeed could not well be done. It has occurred to the writer that perhaps the contention might be made that the said line of decisions involved ordinances passed under and pursuant to charter authority, and that the distinction is that there the Legislature did not pass the statute or law which had the effect of suspending a State law; whereas, in the instant case, they did pass the pool hall prohibition statute, and the people were merely given the right to vote for its adoption or rejection. If this is what the majority had in mind, to differentiate the cases, the reasoning is certainly unsound; for, it is clear that the ordinances involved in all those cases, were not passed, nor attempted to be enforced without the previous sanction and authority of the Legislature. In every instance, they had, as the source of their enactment, the express legislative authority, in the charters enacted by the Legislature, according to all the forms and solemnities required by the Constitution. If the duly *Page 361 constituted city governments could not legally pass ordinances, under legislative charter authority, which had the effect of suspending State laws, because involving the delegation of legislative power to suspend laws, then how can it be said that the Legislature can constitutionally vest that authority in the voters of counties or subdivisions? The same logic that would permit the latter to be done, would also allow the former, and all the decisions of the Courts of Civil Appeals, the Supreme Court and of this court, above cited, must have been wrongfully decided.
Nor will it do to say that the distinction is that the Legislature passed the pool hall statute according to the forms prescribed in the Constitution, and that since the law created the authority to cast the vote, it became the act of the Legislature when cast, and not the act of the people casting it. This is the merest sophistry; but if it be true, then it inevitably results that when the city councils of Dallas, Waco and Beaumont passed ordinances which had the effect of suspending State laws, their acts were the acts of the Legislature, because they were done under the express authority granted by the Legislature. The power conferred in said charters was permissive, just as the authority to vote, contained in the pool hall local option statute, is also permissive. If the act of exercising the power in the one instance becomes the act of the Legislature, it follows as the night the day that its exercise in the other is likewise the act of the Legislature.
Another point that relator raises, which to my mind is persuasive that this law is unconstitutional, is predicated upon the legal maxim, "expressio unius est exclusio alterius." Under our form of government, the Constitution, section 1, article 3, vests the legislative power of the State in the Legislature. The Legislature alone can exercise the power of making laws, and can not delegate such power to any other body, except in cases where it is clearly authorized by the Constitution. Prior to 1876 the Legislature undertook to refer certain legislation to the people for adoption, and the Supreme Court, in the Swisher case, supra, held the Act unconstitutional on that ground. After the adoption of the Constitution of 1876, we find several instances in which the framers provided instances in which the Legislature might refer specific legislation to the people for final adoption. Notably, section 20, article 16 — the provision relating to local option liquor laws. Section 23, article 16, relating to stock laws. Section 10, article 11, relating to independent school districts; section 7, article 11, authorizing coast counties to issue bonds to construct sea walls, etc. Since the adoption of the Constitution of 1876, section 52, article 3 has been amended, authorizing the issuance of bonds for the construction of roads and other purposes to be voted on by the people. Therefore, it is manifest, by these special provisions authorizing the adoption of laws by a vote of the people, that had the people intended the Legislature to exercise the power of referring such legislation to them for adoption, they would have so provided in the Constitution; and having failed to do so, the maxim above referred to becomes the proper rule of construction. The very fact that the people *Page 362 have provided, in special instances, for a vote on certain laws, excludes the idea that they intended that a vote could be taken on any law other than those specifically named.
My brethren have stoutly maintained that the Legislature has the power to enact laws on any subject where not prohibited by the Constitution. This rule is correct in a general sense, but it is not true in this particular case, because there is a limitation in the Constitution against the referring of such a law as the pool hall statute to the people for adoption. This limitation arises out of the rule under discussion that having expressed the character of laws which can be referred to the people, excludes the idea that any other character of laws can be so referred. This constitutional limitation has been outlined by this court in numerous cases, notably that of Holley v. State, 14 Texas Crim. App., 505, construing the local option amendment, section 20, article 16, which provides that the Legislature should enact a law whereby the qualified voters of any county, etc., by a majority vote may determine . . . whether the sale of intoxicating liquors shall be prohibited within the prescribed limits. Subsequently, the Legislature enacted laws prohibiting not only the sale, but the giving away of intoxicating liquor in communities where the sale thereof had been prohibited by a vote of the people. This court held such a statute unconstitutional. It will be noted that the statutory provision only authorized the enactment of laws prohibiting the sale of liquor. It was strongly urged that inasmuch as all power to make laws is inherent in the people, and vested in the legislative branch of the government, that independently of any constitutional provision expressly prohibiting it, the Legislature could, by virtue of this inherent power, legally prohibit the sale or giving away of liquors throughout, or in any locality of the State. That the Constitution being silent upon the subject of giving away, left that matter still to be acted upon by the Legislature as they saw fit. This court held that inasmuch as the Constitution expressly prohibited the sale where the law was adopted, the framers did not intend to prohibit a gift, otherwise they would have expressed the intention in plain and unequivocal language. That the Constitution in not attempting to provide for the passage of a law prohibiting a gift of intoxicating liquor, this express provision prohibiting a sale, operated as a limitation upon the power of the Legislature to enact such a law. In other words, it was an application of the maxim, "the expression of the one is the exclusion of the other." This court held that the Legislature is without power, inherent or otherwise, to pass, subject to ratification by the people, an independent general law prohibiting the gift of intoxicating liquors, as long as section 20, article 16, remains in the Constitution. Mr. Cooley states the rule to be, that when the Constitution defines the circumstances under which a right may be exercised, or a penalty imposed, the specification is an implied prohibition against legislative inference to add to the condition or to extend the penalty to other cases. The Constitution having defined the circumstances under which the *Page 363 people may permit the sale of intoxicating liquor under legislative enactment, and the Legislature having attempted to extend the prohibition to a gift, they exceeded their authority, and this court said: "The Constitution having specified the bounds within which they were to act, it was a direct assumption and assertion of unwarranted power to go beyond these bounds." Thus it will be seen that by the decisions of this court, the expression of the manner and method by which intoxicating liquors might be prohibited in certain localities, became a limitation upon the power of the Legislature to enact a law extending its scope. Upon the same logic, when the people framed the Constitution and specified particular laws which the Legislature might enact and refer to the people for adoption, the expression of these instances became a limitation upon the power of the Legislature to enact any such law on any other subjects not specifically authorized in the Constitution.
There is still another question which it occurs to me it might be important to discuss. Some of the cases outside of Texas hold that the maxim that the Legislature can not delegate its power do not apply to matters of police, and that seems to be the view of the majority here. This opinion seems to be founded upon the idea that it involves a delegation of legislative authority for the Legislature to submit to localities for their sanction, laws which involve the police power; but that such delegation is not within the inhibition of the general rule. In other words, they seem to consider that delegations of police power are exceptions to the maxim. It is not to be denied that this doctrine finds support in some of the decisions elsewhere; but under our Constitution, and the history of the subject in Texas, this is not true in this State.
I think the Supreme Court of Tennessee has aptly met this argument in the following language in Wright v. Cunningham. At page 298, 91 S.W. Rep., the court said:
"Such difference can not be found in the fact, as many cases in other jurisdictions hold that the powers conferred upon such subordinate divisions of the State are police powers. The nature of the powers conferred may have, and no doubt does have, a controlling influence in determining whether they shall be delegated at all, but can have no influence in fixing the method under which they shall be devolved. Whether a legislative actembrace police powers or other powers, rights or duties, at lastit is but a legislative act, and to be valid must square with theConstitution in all respects. All legislative acts, regardless of their contents, or their relative importance, must pass the same ordeal; no one, from a constitutional standpoint, being entitled to more consideration, or subjected to more stringent limitations, or to be treated with more leniency than another.All must be measured with the same measure."
I fail to see how I can add anything to this forcible and, to my mind, unanswerable statement by the Tennessee court. I will merely observe that our Constitution makes absolutely no difference as to the delegation of legislative authority to make or suspend laws, between police measures and other kinds of legislation. Wherever the people have desired the *Page 364 right of referendum for the enactment of police measures, they have carefully provided for the same in the Constitution itself, and have not left the broad field of such delegation open generally to the Legislature.
Not only is it a vicious doctrine, in principle, that the Legislature, in the absence of constitutional permission may refer all laws relating to the police power directly to the people for their sanction, but the consequences of such a doctrine are so great, and the violation of the representative principle so plain, that I deem it proper to point them out. If such a proposition be sound, then all the multitude of subjects embraced within the scope of police power may be submitted to the people for them to pass directly upon, before they become laws. This court well knows that the tendency of modern judicial opinion is to broaden the scope of the police power, so as to embrace not only all subjects bearing a proper relation to public morals, public health, the public safety and the good order of peace and society; also all matters having an appropriate relation to the public welfare. Within these bounds, the power is practically illimitable, and is elastic enough to keep pace with the needs of the times and of civilized society. Indeed, so wide are the boundaries of this power, that the mind can not conceive the practical subjects of its exercise. Perhaps it is no exaggeration to say that half the legislation of this day falls properly under the police power. Therefore, if the Legislature can constitutionally refer such subjects to the people, not only of cities, but of counties, for their determination as to whether statutes relating thereto shall become laws, we will presently see the Legislature evading its responsibility as to the wisdom and expediency of the greater part of our laws, and putting their enactment up to the people. All laws relating to gambling, in all its forms, the carrying and sale of pistols, and other deadly weapons, the licensing, regulation, or prohibition of bawdy houses, the Sunday laws, the regulation or prohibition of all occupations and pursuits which might be said to be evil in their tendencies, laws relating to public health, and to public safety, such as quarantine regulations, and the storing and transportation of explosives, laws relating to the hours of labor, and the working of women and children in mines and factories — these and hundreds of others of which the mind can scarcely conceive, may all be referred to the people and become laws or not laws, as the people may by direct vote determine. To my mind the statement of such a proposition is its own answer under a Constitution like ours. The history of our Constitution, and of legislation in this State, does not warrant this innovation upon the system of enacting laws in Texas.
That the above far-reaching consequences may flow from the decision of the majority, seems to be conceded by them, but they say that the wisdom of the law is for the Legislature, and not for us. I can not but believe that my brethren have not seriously contemplated the possible results of their opinion, for if it be the law, then our Constitution, its history, its provisions, and the decisions of the courts construing it, have all been rendered in vain. Their decision will constitute a complete *Page 365 revolution of the representative form of government ordained by the Constitution. We will have this year before the people of Texas, an amendment to the Constitution, submitting the referendum clause for insertion in that instrument. If the majority be right, the adoption of the amendment would be the merest folly, because they say the Legislature has that authority now to be exercised in its wisdom, as an inherent power. The adoption of the referendum would be utterly useless, for they say the referendum has already come in Texas. The inclusion of that power in the Constitution, to be exercised by the people, would be like the numerous clauses heretofore placed in the Constitution with reference to the local option laws — a mere work of supererogation.
If the Legislature should not exercise the broad and virtually unlimited power which my brethren say they possess, it is only because they will see fit not to exercise it. If they should do so, the discord and chaos that would follow would be marvelous. The confusion of tongues at the tower of Babel would be harmonious symphony compared with the wholesale confusion that would result from the holding of the majority opinion. In the light of the constitutional history of this State, the course of judicial decisions, and the interpretation recently placed upon our Constitution by our Legislature in proposing the referendum amendment, I propose that the majority shall take the responsibility, before the bar and bench of Texas, for this radical and dangerous innovation upon our form of government. This opinion, unavailing as it must be to alter the opinion of the majority of this court, and perhaps already too long, is my earnest and solemn protest against it.
It will be observed that I have not undertaken to follow my brethren in the discussion of opinions of courts of other States, or the state of the law upon these questions in other States and jurisdictions. My reason for not doing so is simply this: those cases and the law announced in the various States are in hopeless confusion and conflict, and can not enable us to determine the meaning of our own Constitution. We ought and should decide these questions under our own Constitution, law and decisions. We are familiar with our constitutional provisions and their history, as well as the judicial and legislative interpretation placed on that instrument in our own State, and we should pass upon its meaning. The Supreme Court of Tennessee, speaking through Justice Neil, in Wright v. Cunningham, supra, tersely states my idea as follows:
"Suffice it to say that questions of State constitutional law are, in a very important sense, peculiarly local; and in every jurisdiction the court of last resort must decide for itself the meaning of the Constitution under which it exists, and the validity of laws enacted by the legislative branch of the government. The decisions of other courts, construing constitutions containing similar provisions, can be, at most, only suggestive and advisory."
In justice to myself I place of record my high sense of appreciation *Page 366 of the able assistance in their exhaustive brief, written argument, and by oral presentation of the great issues involved in this case, as well as personal aid rendered me in the preparation of this opinion by Messrs. Lightfoot, Brady Robertson, counsel for applicant. This assistance has been invaluable. Not only has this assistance been of great service to me as judge, but I am persuaded their earnest work in behalf of the great principle of representative constitutional government entitles them to recognition in the jurisprudence of our country. To that end it affords me pleasure to place this of record and in history.
I can not agree with my brethren in the conclusion they have reached, and, therefore, dissent.