Judge Harper in Ex parte Francis, 72 Tex.Crim. Rep., 165 S.W. Rep., 147, and Ex parte Mode, 77 Tex.Crim. Rep., 180 S.W. Rep., 708, has so completely, both on reason and on authority, demonstrated the constitutionality of our pool hall law, it is entirely useless for me to again discuss the question. In my judgment, the opinions by him in those cases are unanswered and unanswerable. If my brethren are not convinced by those great opinions, and by the opinions of the great judges and courts of every other State in the United States cited by him, then "neither will they be persuaded though one rose from the dead."
Evidently Judge Morrow has overlooked a universal and cardinal principle of the powers of the State Legislatures, and specially of our State. And that is, as expressed by Presiding Judge White, in Holly v. State, 14 Texas Crim. App., 505: "The State Constitutions are only limitations upon the complete power with which otherwise the legislative department of the State was vested in its creation." He preceded that principle by stating: "The distinguishing characteristic difference between the Federal and State Constitutions is that the Constitution of the United States is but a grant of legislative power, and the Congress *Page 621 can, in framing laws, only exercise such authority as is granted, whilst on the other hand, State Constitutions are only limitations upon the complete power with which otherwise the legislative department of the State was vested in its creation." He then quoted Judge Cooley in his work on Constitutional Limitations (4th ed., p. 210), wherein he said: "Congress can pass no laws but such as the Constitution authorizes, either expressly or by implication, while the State Legislature has jurisdiction of all subjects on which its legislation is not prohibited." And further quoting Judge Cooley, he said: "The law-making power of the State recognizes no restraints and is bound by none except such as are imposed by the Constitution. That instrument has been aptly termed a legislative Act by the people themselves in their sovereign capacity, and is, therefore, the paramount law. Its object is not to grant legislative powerbut to confine and restrain it. Without the constitutionallimitations the power to make laws would be absolute."
Our own Supreme Court has repeatedly held exactly the same doctrine. In Brown v. City of Galveston, 97 Tex. 1, it is held: "Except in the particulars where it is restrained by the Constitution of the United States, the legislative department may exercise all legislative power which is not forbidden expressly or by implication by the provisions of the Constitution of the State of Texas. Lytle v. Halff, 75 Tex. 128; Harris County v. Stewart, 91 Tex. 133; Cooley's Const. Lim., 200-201."
Every court in the land and every text-book writer on the subject is to precisely the same effect as this court and our Supreme Court. There can be no question about this cardinal rule being the law in this State.
Section 20, article 16, of our Constitution is not a delegation of power to the Legislature, but is an absolute command to the Legislature that it shall exercise a power it unquestionably had. The language is: "The Legislature shall at its first session, enact a law," not that it may do so. Again, in section 42, article 3, our Constitution says: "The Legislature shall pass such laws as may be necessary to carry into effect the provisions of this Constitution." In section 56, article 3, is a long enumeration of subjects, forbidding the Legislature to pass any local or special law upon them. The language is: "The Legislatureshall not." Then there are other provisions unnecessary to specially mention where the Legislature is prohibited from doing some other specific things. It was by reason of these express prohibitions that it became necessary for the Constitution, for instance, in section 23, article 16, to provide in effect that said prohibitions did not prevent the Legislature from passing stock laws for particular portions, sections and counties of the State. That section is no delegation of power. It is simply excepting that subject from the said other general prohibition provisions. So of every other matter mentioned by Judge Morrow in his opinion wherein the Legislature has submitted and the people amended certain provisions of our Constitution. In each instance mentioned by him the amendment became necessary not because *Page 622 the Legislature did not have power to enact such laws if it had not been expressly prohibited from doing so; it became necessary to amend to get the authority, because the power and authority had been expressly denied by the constitutional provisions which were amended. Not one of these matters, by implication or otherwise, tends to show that the Legislature, unless prohibited by the Constitution, did not have power to enact these laws. The amendments became necessary and proper because the constitutional provision amended expressly prohibited that, and the Legislature, of course, with that express prohibition were denied the power, and in order to exercise it they had to submit an amendment to the people and have them to adopt it so as to authorize the Legislature to legislate on the particular subjects mentioned.
Judge Morrow in his opinion herein cites, as authority, and quotes the opinion of two of our Supreme Court judges, on this question, in Ex parte Mitchell, 177 S.W. Rep., 953. Surely he has overlooked the decision of that court in the later case of Middleton v. Texas P. C. Co., 185 S.W. Rep., 556, which is the very reverse of the Mitchell case, and utterly destroys the Mitchell case as any authority whatever. (State v. Clark, 187 S.W. Rep., 760.)
This case should be affirmed, not reversed. I dissent.