The Statewide statute prohibiting the sale of intoxicating liquors, without any doubt, is constitutional, valid and legal in every respect.
There is no provision in our Constitution, which directly or by implication, prohibited or prevented the Legislature from enacting it.
It is common knowledge — known by all, that the Legislature of every State in the United States of America, and this State, has the undoubted police power and authority to prohibit the sale of intoxicating liquors as a beverage within its whole bounds — Statewide — unless there is some provision in its Constitution which clearly forbids it. This has been expressly held many times by the Supreme Court of the United States, and by the Supreme Court of every State which has passed upon the question, and by every law writer who has written upon the subject.
The Legislature has this police power and authority as a necessary incident of the sovereignty of the State — the power of self-preservation, and protection of its men, women and children from the awful curse of such liquors; for, "by the general concurrence of opinion of every civilized and Christian community, there are few sources of crime and misery to society equal to the saloon. The statistics of every State show a greater amount of crime and misery attributable to the use of such liquor obtained at saloons than to any other source." And because *Page 299 "the confederated intelligence of mankind has come to realize that the sale and use of such liquors is a profligate waste of the material resources of the country, and is a universal impairment of its man-power. Also because experience has developed the truth that the liquor traffic knows no master and knows no law, and is beyond the pale of all adequate regulation," and for that many years it has ruled this country with an invisible iron hand, and for the past few years and now its influence and power has been and is pro-German and against the United States, and the State, in this war.
It was expressly decided by this court, when the judges composing it were Judges White, Willson and Hurt, that section 20, article 16, of our Constitution, in no way deprived the Legislature of said undoubted police power and authority. They so decided — not one time only — but in effect, four times. (Bell v. State, 28 Texas Crim. App., 96; Ex parte Bell, 24 Texas Crim. App., 428; McGuire v. Glass, 15 S.W. Rep., 128; McGuire v. State, 15 S.W. Rep., 918.)
The Supreme Court of the United States unanimously expressly held: "There is nothing in the Constitution of Texas restricting the power of the Legislature in reference to the sale of intoxicating liquor," . . . citing the Bell cases supra. (Gioza v. Tiernan, 148 U.S. 661, 37 L.Ed., 601.)
Judge Henderson, while a member of this court, so held. (Ex parte Viccarazza, 52 Tex.Crim. Rep.-118.)
Section 20, article 16, of our Constitution is simply a plain and clear command to the Legislature to enact a law whereby the voters of any county, justice's precinct, town, city (or other subdivision of the county), by a majority vote, may determine that the sale of intoxicating liquors shall be prohibited within its local limits alone. Certainly it does not say to the Legislature, thou shalt not enact a law prohibiting the sale of such liquors in the whole State. This court, Judge Hurt writing, held, "the object of this provision was not to deprive the Legislature of its power over the subject"; . . . and further, to say that local option divests the Legislature of the power to prohibit the sale of such liquors all over the State, "is a proposition too preposterous for discussion," and "is absurd." (Bell case supra.)
Undoubtedly the constitutional convention, in inserting said section in the Constitution, and the people in adopting it, never for one moment thought or imagined, that they were thereby depriving the Legislature of the necessary police power and authority to prohibit the sale of such liquors all over the State whenever it deemed it necessary or proper, for they knew that the sale and resultant use of such liquors was the greatest curse to mankind. If they had so intended they would have said so in plain and clear language, like they did in many of the sections from 30 to 58, article 3.
Our Constitution divides the powers of the government of this State into three distinct departments — legislative, executive and judicial; and expressly requires that no person, or collection of persons, of one of *Page 300 them, shall exercise any power properly attached to either of the others. (Art. 2, sec. 1.) And vests legislative power in the Legislature exclusively. (Sec. 1, art. 3.) Undoubtedly the power to enact and repeal laws belongs exclusively to the Legislature. This court can not legally repeal any law passed by the Legislature. And if it should do so, it unquestionably illegally usurps power never given it, and never intended it should have.
A law may be as effectually repealed by a court by illegally holding it "unconstitutional," when it is not so, as if it should in express language say a certain law passed by the Legislature, naming it, "is hereby repealed."
Our Constitution prescribes the same oath of office of every officer of each of said three departments. (Sec. 1, art. 16.) Every legislator, and the Governor, takes exactly the same oath, to discharge and perform his duties agreeably to the Constitution of this State, as each of the judges of this court takes. No more. No less. In enacting laws, the legislators, and the Governor in approving them, undoubtedly determines and holds that such laws are constitutional.
By the enactment of the Statewide prohibition law — now, in effect, the same as repealed by the decision herein — the 103 members of the House who voted therefor held it was constitutional, under their solemn oaths. So, the twenty senators, counting the two paired, who voted for it, held it was constitutional, under their solemn oaths. The Governor, too, by approving it, held it was constitutional, under his solemn oath.
Even of the small number of legislators who voted against its passage, but two in the House and one in the Senate, stated they did so because they thought it was unconstitutional. Doubtless none of the others who voted against its passage did so for that reason, but for altogether other reasons. So we have two of the three departments of this State expressly holding said law is constitutional.
The great Democratic convention of this State, at Waco, on September 4th last, expressly and unanimously endorsed said Statewide prohibition law, and unanimously commended the Legislature for enacting it, thereby holding it was constitutional, valid and legal.
A considerable number of said 103 members of the House, and twenty senators, were eminent, learned, and great lawyers of this State. Among those of the House was one who formerly adorned this bench as a member of this court; and one of the senators is the Democratic nominee for one of the judges of this court, the successor of this writer, an eminent, great and learned lawyer, who will doubtless very soon be a member of, and adorn the bench of this court.
And among the members of said Democratic convention were also a large number of the greatest, most eminent and learned lawyers of Texas, at least the equal of any on the bench of any court. The fact that others of the Legislature and convention were not lawyers in no way disqualified them from holding said law constitutional. Such *Page 301 power is not given alone to lawyers. Others also have it, and have the right to exercise it, and do.
All courts and law writers hold, and this court has held, that in deciding upon the constitutionality of a law no court will declare the law unconstitutional unless it is so beyond a reasonable doubt. That a reasonable doubt must be solved in favor of the legislative action, and the law be sustained.
And yet — and yet, in the very face of said former decisions by this court, by the great judges thereof — Hurt, White, Willson and Henderson — and of said unanimous decisions by the Supreme Court of the United States; and of the vote of 103 members of the House; and of the vote of twenty senators; and of the approval of the Governor; and of the unanimous vote of said Democratic convention — each and all holding that said Statewide law is constitutional, it is now ruthlessly torn from the statute book by Judge Morrow — one judge of this court. This is wrong — radically wrong.
If the decision herein stands, an awful calamity to this great State will occur, for then the iniquitous saloons and liquor traffic, with all their baleful and wicked effects, will be illegally foisted upon a large number of our people — men, women and children, including many of the more than 200,000 soldiers in training, and more than that number of industrial workers, all doing their "bit" — everything they can, to win this atrocious war waged upon us for conquest by the cruel, beastly and inhuman Huns.
It is my intention now to write more fully showing the undoubted validity of said law, if Judge Morrow adheres to his decision upon final hearing upon a motion for rehearing, if one is filed.
For the present I merely write briefly to voice my earnest protest against Judge Morrow's decision.
ON REHEARING. November 27, 1918.