The applicant was ordered discharged at the Tyler Term, and is now before us on motion for rehearing filed by the State. In connection with the motion respondent has filed an able brief, in which the propositions announced by the court in the original opinion are strenuously attacked; and it is urged that in consonance with correct legal principle, and the authorities bearing on the question, a rehearing should be granted and applicant remanded.
As we understand the act of the Twenty-Ninth Legislature (Laws 1905, page 379), it prohibits the solicitation of orders for the sale of intoxicating liquor in any territory where local option is in force, for the sale or delivery of said liquor in such territory, and this without regard to any sale in the territory. The original opinion held that said act was invalid, on two grounds: First, that the Constitution authorized the prohibition of sales only in a local option territory, and thus negatived any other authority on the part of the Legislature to make other police regulation. And, second, that the act of the Legislature as formulated, apprehended the solicitation of sales, lawful in themselves, and which the Legislature had no power to inhibit, and therefore the act was void. Respondent denies that article 16, section 20, of the Constitution is restrictive to sales alone, or that it denies to the Legislature the exercise of other police power in furtherance of and tending to aid the power given to the people in said article of the Constitution; and cites us to Bowman's case, 38 Tex.Crim. Rep.; Randle's case,42 Tex. 580; and Smisson v. State, 71 Tex. 222.
Bowman's case, in effect, holds that sales for sacramental and medicinal purposes were eliminated from the provisions of the Constitution prohibiting the sales of intoxicating liquor; that such sales were not within the evil contemplated being within themselves useful. The first, being *Page 66 sales for sacramental purposes, and protected by another clause of the Constitution; and the latter was excepted as being necessary to the welfare of the people; that it was not necessary for the Legislature to except the same — the exception inhering in the Constitution itself; that the act of the Legislature was simply a legislative construction of the Constitution. Their construction was certainly not the exercise of more power than was given by the Constitution. Therefore, it was not a case of ultra vires, as stated in Bowman's case, supra. The Act of the Legislature is in accord with the rule laid down in 1 Blackstone Com. (Cooley's 4th ed.) page 60, and the illustration therein given. Rule 4 relating to interpretation of laws is as follows: "As to the effects and consequences, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf which enacted, `that whoever drew blood in the streets should be punished with the utmost severity,' was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit." So that, in construing article 16, section 20, we simply eliminated the matter, as not within the evil contemplated. In the statute now before us, the solicitation of sales by drummers from other States is as much within the evil contemplated as sales by our own citizens. We cannot therefore hold that the Legislature intended to eliminate these under the rule above indicated. Nor is the Brown case, 38 Tex. 295, when rightly understood, authority in support of any contention made by respondent. See the opinion of this court in Ex parte Massey, decided at the Tyler Term. In the latter case it was shown that the cold-storage act was no part of the local option law, and had no bearing as to the sale of liquor: the prohibition of which alone was authorized by the Constitution. In that case, in speaking of the keeping of a cold storage as being violative of the local option law, the writer said: "A closer scrutiny of the question renders this proposition at least doubtful, as it is not a direct assault on the local option law, but appears to be outside of the law," which we think is clearly the case, and marks the distinction between said Brown case and the case at bar, which has a direct bearing as to the sale of liquor in local option territory, which is the matter of prohibition under our Constitution.
Respondent was not fortunate in the citation of the Randle case, inasmuch as the question as to the offering for sale of a lottery ticket, was not involved in that case. Randle was indicted for establishing a lottery, under the name of the Galveston Gift Enterprise Association, and the question was simply whether such institution was a lottery. So far as we have been able to discover, the court nowhere, even as dicta, holds constitutional the act of the Legislature which made it criminal, to offer a lottery ticket for sale. But we concede, if that question had been before the court, they should have so held. That case came under the Constitution of 1869, which was brought forward *Page 67 from the Constitution of 1845, under which said prosecution was had. The article reads as follows: "No lottery shall be authorized by this State, and the buying and selling of lottery tickets within this State is prohibited." That was simply a limitation on the Legislature with reference to authorizing the establishment of lotteries within this State. The clause imparted no power to the Legislature; nor did it take away from the Legislature, any legislative power on the subject. In accordance with the general rule, as announced in respondent's brief, in the absence of restriction, the Legislature had plenary power over the subject. The same observations may be made with reference to Smisson v. State, 71 Tex. 222, cited by respondent. The court there held that the power given in the Constitution to the Legislature to authorize the sale of school lands, did not by implication deny the power of the Legislature to authorize the leasing of the same. We heartily concur with the observation there made by Judge Stayton: "That a power, clearly legislative in its character, not expressly denied to the Legislature, ought not to be held to be denied by implication, unless its exercise would obstruct the exercise of a power expressly granted." Both of said cases were under a clause of the Constitution directly bearing on the authority and duty of the Legislature. In the last mentioned case, the Legislature unquestionably could have authorized the sale of school lands, in the absence of some constitutional inhibition. It was merely held in that case that the power expressed in the Constitution to make sale of such lands which the Legislature had before, did not deprive the Legislature of the power to make other disposition of such school lands not inconsistent with the granted power.
That is not the question here. 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, 17 Tex. 441, it was held, that the Legislature could not delegate to voters or the people the power to pass laws, in the absence of some constitutional provision authorizing this. Judge Lipscomb, who rendered the decision says: "But besides the fact that 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 by 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. By the act under consideration this principle is subverted, and the law is proposed to be made at last by the popular vote of the people, leading inevitably to what was intended to be avoided; confusion and great popular excitement in the enactment of laws." This principle was reaffirmed in San Antonio v. Jones, 28 Texas, p. 19.
It was not until the adoption of article 16, section 20 in the Constitution of 1876, that power was given in the organic law, authorizing the delegation of power to the qualified voters to enact local option *Page 68 in the territory therein mentioned. That clause was amended in the Constitution of 1891; and both it and the original clause authorized the Legislature to enact a law whereby the qualified voters in said territory may determine by a majority vote from time to time whether the sale of intoxicating liquor shall be prohibited within the prescribed limits. No one will deny that this enactment was a delegation of authority to the voters of the territory named, to make a law adopting local option in such territory. The people or the voters of the locality did not have this before. The Legislature retained in full its power over the subject; but when the people spoke under this clause of the Constitution, the Legislature was deprived of its authority over the subject; and full authority, that is the authority expressed over the subject in said enactment, was delegated to the people, or the voters of the locality, who represent as to this matter the people of the territory. That power so delegated, expresses the method which the voters can pursue with regard to intoxicating liquors; that is, the voters of the locality are authorized to pass a law prohibiting the sale of intoxicating liquors within the local option territory. As we understand it, the whole subject matter is exhausted, nothing is left to regulate. The putting into operation of section 20 abolishes the liquor traffic altogether, leaving nothing to the exercise of police power. Whatever power can be exercised must be with reference to sales, and them only. If the Legislature had undertaken to authorize the people to vote on the question as to whether the people would penalize an offer to sell intoxicating liquors, it would not have been in execution of the delegated power. It would have been ultra vires. No more was the Legislature authorized to couple such a provision with the prohibition of sale: much less could the Legislature interfere and of themselves interpolate a provision making penal the offer to sell intoxicating liquors. The people were authorized to vote only upon one question, that was the prohibition of sales of intoxicating liquors. The power granted was exclusive, and the Legislature could make penal only that which the voters of the locality were authorized to adopt. The provision of our Constitution on the subject of local option was intended to prescribe a method of dealing with the question, and to exclude any other rule or method, at least so far as local option territory is concerned. The application of this doctrine was recognized in Holley's case, 14 Texas Crim. App., 505, referred to in the original opinion. In that case, the question of gift was involved, and it was there held that the Legislature could not authorize, or if authorized by the Legislature, the voters of the locality could not pass a law prohibiting the gift of intoxicating liquors. It was there contended that the inhibition of a gift was in aid of the main proposition, to wit: the prevention of sales of intoxicating liquor. The court there quotes with approval what Judge Cooley says on this subject, to wit: "It is established as a general rule that when the Constitution gives a general power or enjoins a duty, it also gives by implication every particular power necessary for the *Page 69 exercise of the one or the enjoyment of the other. The implication under this rule, however, must be a necessary, not a conjectural or argumentative one. And it is further modified by another rule, that where the means for the exercise of a granted power are given, no other or different means can be implied as being more effective or convenient. * * * Another rule of construction is, 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 interference, to add to the condition or to extend the penalty to other cases. (Cooley's Const. Lim., 4 ed., p. 78.)" The court further say: "This rule is decisive of the controversy. The Constitution defines the circumstances under which the people may prohibit the sale of intoxicating liquors under legislative enactment, and the Legislature have attempted to extend the prohibition to a gift, and have imposed a penalty for giving away intoxicating liquors. This they had no authority to do. On the contrary the Constitution having specified the bounds within which they were to act, it was a direct assumption and usurpation of unwarranted power to go beyond those bounds." Steele v. State, 19 Texas Crim. App., 425; Dawson v. State, 25 Texas Crim. App., 670. This principle has been since followed, as the established doctrine in this State. Even in the act prohibiting blind tigers, it was held that there had to be a sale before the law with reference to blind tigers became operative. Segars v. State, 51 S.W. Rep., 211. And so it has been held that the prescription of a physician, without the accompanying sale is inoperative. Williams v. State, 10 Texas Ct. Rep., 979.
On the second proposition we hold that the act, as formulated, renders it invalid; that is, the act is in its terms comprehensive, and makes penal all solicitations of sales for intoxicating liquors, in local option territory — there is no exception as to the sale by solicitors from other States, under the laws of Congress regulating interstate commerce; and there is no exception as to soliciting sales for medicinal purposes. All of these sales are lawful sales in local option territory. Sedgewick v. State, 85 S.W. Rep., 813; Snearley v. State,40 Tex. Crim. 507.
In this connection we observe as a matter of surprise that counsel for respondent contend that the soliciting of the sale of liquor by persons representing some house situated in another State, does not come within the laws governing interstate commerce; that is, the contention is that soliciting the sale of goods is not interstate commerce. The authorities are all one way on this question. See 17 Amer. Eng. Ency. of Law, p. 64, notes 9 and 10; McCall v. Cal., 196 U.S. 104. And in Robbins v. Shelby Taxing Dist., 120 U.S. 497, the court say: "The negotiations of sales of goods which are in another State, for the purpose of introducing them into the State in which the negotiation is made, is interstate commerce.
Now, we apprehend it will be conceded, as stated above, that sales *Page 70 or solicitations or offering for sale of intoxicating liquor in local option territory, is legitimate as interstate commerce, and for medicinal purposes under the rules prescribed by our Legislature. It will also be admitted that there are no terms in the act, excepting these sales from its provisions — that is, the act is all embracing, and according to its letter makes such sales penal. Now, there is a line of decisions which authorize us to reject certain portions of an act, which are unconstitutional, and retain as valid the constitutional portions where the act is severable. But here we have no exceptions or clauses relating to these legal sales, in the shape of provisos or otherwise. So that, in order to validate the act, we are asked to interpolate the exceptions, and then reject them, and hold valid the penalizing of soliciting sales of intoxicating liquor, over which the Legislature had power to punish. This cannot be done. We quote from Sutherland on Stat. Const., sec. 173, as follows: "In United States v. Reese, 92 U.S. 214, it was held that the power of Congress to legislate at all upon the subject of voting at State elections rests upon the fifteenth amendment to the Federal Constitution, and can be exercised by providing a punishment only when the wrongful refusal to receive the vote of a qualified voter at such election is because of his race, color or previous condition of servitude. A congressional enactment not confined in its operation to unlawful discrimination on account of race, color or previous condition of servitude transcends the constitutional limit, and is unauthorized. Waite, C.J., said, `We are therefore directly called upon to decide whether a penal statute enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish. For this purpose we must take these sections of the statute as they are. We are not able to reject a part which is unconstitutional and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of the sections must stand as a whole or fall altogether. The language is plain. There is no room for construction, unless it be as to the effect of the Constitution. The question, then, to be determined is, whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only. It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government. The courts enforce the legislative will when ascertained, if within the constitutional grant of power. * * * To limit this statute in the manner now asked would be to make a new law, *Page 71 not to enforce an old one. That is no part of our duty.' This view has been repeatedly approved in subsequent cases." U.S. v. Harris, 106 U.S. 629; Trade Mark cases, 100 U.S. 82; Va. Coupon cases, 114 id., 305; Baldwin v. Franks, 120 U.S. 678; James v. Bowman, 190 U.S. 127. In this case the principle is laid down that penal legislation broader than the mandate cannot be sustained, the court having no power to amend or reform it. The court here says: "It is urged, however, that the general description of the offense included the more limited one, and that the section was valid where such was in fact the cause of denial." The court in following the line of decisions mentioned, says: "We deem it unnecessary to add anything to the views expressed in these opinions. We are fully sensible of the general great wrong results from bribery at elections and do not question the power of Congress to punish such offenses, when committed in respect to the election of federal officers. At the same time it is all important that the criminal statute should define clearly the offense which it purports to punish, and that when so defined it should be within the limits of the power of the legislative body enacting it. Congress has no power to punish bribery at all elections. The limits of its power are in respect to elections in which the nation is directly interested, or in which some mandate of the national Constitution is involved, and the courts are not at liberty to make a criminal statute broad and comprehensive in its terms (and in these terms beyond the power of Congress) and change it to fit some particular transaction which Congress might have legislated for if it had seen fit." We believe these citations are peculiarly applicable to the question we are discussing: especially under our statute with reference to offenses, which requires that all offenses be defined. It is not for the court to legislate into a statute provisos or exceptions which may be surmised the Legislature intended to put there and did not, for the purpose of then judicially legislating such provisos out of the statute.
We see no reason to overturn the decisions of this court, since the Holley case, which hold that article 16, section 20, affords the method by which local option can be adopted in localities. That method is the prohibition of the sale of intoxicating liquors in such territory, and can only be put into force by a vote of the majority of the voters in such locality; and the Legislature is not authorized to submit to them any other issue than that marked out by the Constitution. That is exclusive and exhaustive. There is nothing reserved to the Legislature, its only function being to regulate how the vote shall be taken on this question, and to pass laws for the punishment of the sale of intoxicating liquor in violation of the law, which the people have made. But if it should be conceded that the Legislature had the power in the first instance to punish the solicitation of a sale of intoxicating liquor in local option territory without submitting it to a vote of the people in such locality, then, as we have shown, it did not pass a law legal in form, and capable of enforcement.
The motion for rehearing is accordingly overruled. Overruled. *Page 72