We have re-examined the subject in the light of the motion for rehearing prepared by the Attorney General, and on the points reviewed in the original opinion it would be but a repetition to restate our conclusions or the reasons therefor. On the phase of his motion embodying the proposition "that the Legislature had authority, under the law of military necessity, to prohibit the sale of intoxicating liquors throughout the State,notwithstanding there was within the Constitution an express orimplied prohibition of the enactment of such a measure when no such military necessity existed," we think the Attorney General misapprehends the existence of the facts and the law upon which he found his proposition.
At the time the law in question was passed there were on the statute books laws which not only forbade, under felony penalty, the sale or gift of intoxicating liquors to a member of the military organization at *Page 302 any place in the State, but also laws prohibiting the sale of such liquors to nine-tenths of the civil population, and in addition thereto a Federal regulation establishing a prohibited zone around the military camps, and authority in the President as Commander in Chief of the army to extend or enlarge such prohibition when deemed necessary or advisable.
Recalling the existence of these legal restrictions on the liquor traffic, it is apparent that the statutory prohibition law was not passed to meet a necessity to protect the soldiers training in the State from the evils of intoxicating liquors during the war. The view that it was not to meet an emergency is emphasized by the fact that the operation of the law was deferred for more than three months after its passage. See Local Option Laws; also Acts 35th Legislature, 4th Called Session, ch. 7 and ch. 12; also acts 65th Congress, 1st Called Session, ch. 15, p. 76, sec. 12; Ex parte Hollingsworth, 83 Tex.Crim. Rep., 203 S.W. Rep., 1102.
The Governor, in his proclamation calling the Special Session of the Legislature, suggested the enactment of several measures which would, by constitutional means, protect the public health and morals from evils growing out of the fact that the sale of intoxicating liquors was not prohibited in the vicinity of some of the military camps, except in a limited radius, which the Federal government did not wish on its own account to enlarge. These laws were all passed and given immediate effect, and such of them as have been construed by this court have been sustained as a legitimate exercise of the police power under the control of the Legislature. See Ex parte Hollingsworth, supra.
The Governor, in a message to the Legislature, advised against the passage of a law prohibiting the sale of intoxicating liquors on the ground that its constitutionality was questioned by many eminent lawyers, and that the zone law and others mentioned specifically in his proclamation would effect the desired end, stating that "a measure strong because of its certainty was to be preferred over a measure which in reaching too far may incur the risk of failing entirely."
The history of the transaction impresses us with the view that section 2 of the Act was not passed to cover a temporary military necessity, but represents the will of the Legislature to permanently depart from the local option method of prohibiting the sale of intoxicating liquors, which was the method pointed out in the Constitution, and rested on the will of the people in the counties and district affected, expressed by their vote; and to substitute therefor a method resting on the will of the Legislature.
Military necessity, so far as we are advised, does not become the authority for the passage of law. Its functions arise, as we understand, when in the time of war extraordinary and unforeseen emergencies occur in which the protection of the public interests requires for the moment the disregard of private rights, but to justify its exercise "the public danger must be immediate, imminent and impending, and the emergency in the public service must be extreme and imperative, and such as will *Page 303 admit of no delay or resort to any other source of supply." United States v. Russell, 13 Wall., 623.
The power to make war and the power that may be lawfully exercised incident thereto, is not in the State, but in the Federal government. In the Constitution of the United States we read: "No State shall, without the consent of Congress, engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."
A State may be impelled by conditions growing out of war to enact police regulations that it would not otherwise establish. In making such enactments, however, the power exercised must be within the limits prescribed or implied in the State Constitution.
The people of the United States are at war, maintained through the agencies authorized by their Federal Constitution. They are proceeding according to the organic law of the nation. On the subject we quote from a recent address by a jurist of national reputation:
"While we are at war we are not in revolution. We are making war as a nation, organized under a Constitution from which the established national authorities derive all their powers, either in war or in peace. The Constitution is as effective today as it ever was, and the oath to support it is just as binding." Amer. Bar Assn., 1917, vol. 42, p. 232,
The Federal Constitution declares:
The Federal Constitution declares:
"The Congress shall have power to declare war, to raise and support armies, to provide and maintain a navy, to make rules for the government and regulation of the land and naval forces; to provide for the calling forth of the militia to execute the laws of the Union, suppress insurrection, and to repel invasion; to make all laws which shall be necessary and proper for the carrying into execution of the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or any department or office thereof."
In these are embodied the war powers of the nation. It is said by the Supreme Court of the United States: "The powers delegated to Congress, relating to war, are plenary and exclusive. . . ." Torball's case, 13 Wallace, 297.
The Congress, having power to prosecute war, and not in the Constitution limited as to methods, has broad discretion in the enactment of extraordinary regulations during war. These, however, to be valid must find sanction in the express or implied powers granted to Congress. McCullough v. Maryland, 4 Wheat., 316, 4 L.Ed., 579.
In both peace and war the Legislature, in the passage of laws, must observe the express and implied limitations of the State Constitution, and the Congress must find sanction in the Federal Constitution for its enactments. Neither can exercise unbridled power on the assumption that a necessity exists therefor.
The State Legislature can not, on the assumed existence of a military necessity, pass a law prohibited by the State Constitution, and the Federal government equipped with adequate war power is not so impotent *Page 304 to protect its armies that it must impel the State Legislature to do that which the State Constitution forbids.
In the American system of government by the people through agencies, with powers defined and limited by written Constitution, the courts have no power to legislate. Their utmost is to refuse to aid in the enforcement of an Act of the Legislature which transcends the authority vested in that department by the Constitution. The limitations imposed by the Constitution are essential (110 U.S. 576), and there is no menace to constitutional government in requiring their observance, though there is danger thereto in suffering a disregard of them.
No expediency can condone the sanction by the courts of an Act of the Legislature which, as section 2 of this one does, annuls a provision of the Constitution. The part of the Act prohibiting the sale of intoxicating liquors is not merely a failure to do that which the Constitution commands, but does that which renders ineffectual the power conferred by the Constitution on the people of the counties.
The courts indulge a presumption in favor of the validity of legislative Acts, but the presumption is not conclusive. To so regard it would amount to an abdication of the power vested in, and a disregard of duty imposed on, the judicial branch of the government.
The motion for rehearing is overruled.
Overruled.
PRENDERGAST, JUDGE, dissenting.