The offense is transporting intoxicating liquor; the punishment, confinement in the penitentiary for one year.
The sheriff of McCulloch County testified that appellant and two companions drove through the town of Brady at a high rate of speed; that he pursued the parties and overtook them about five miles out of town on the highway; that he had to run sixty or sixty-five miles an hour to overtake the parties; that the car appeared to be heavily loaded; that after appellant had stopped the car he walked up to the car and smelled whisky; that he advised appellant that he had come through town at an unlawful rate of speed; that after smelling whisky he told appellant that he was under arrest for speeding. Appellant's companions were directed to get out of the car and were placed in charge of the officer accompanying the sheriff. The sheriff rode in the car with appellant, where he found a fruit jar with whisky in it. Before entering the car the sheriff had walked around to back of the car and observed that the turtle-back would not let down. There was something under the turtle-back covered with bedding, which looked like kegs. After taking appellant back to town the sheriff searched the car and found about 55 gallons of whisky.
The testimony of the officer touching the result of the search was objected to on the ground that he had no warrant of arrest and had no search warrant authorizing the search; that no probable cause existed for making the search; and that the officer had no right to arrest appellant *Page 296 for exceeding the speed limit, in view of the fact that he was not in the uniform prescribed by law. There being no question of the fact that appellant was exceeding the speed limit, the officer's right and duty was to arrest him, and if at the time of or soon after such arrest, the officer discovered evidence of the presence of whisky, his right of search would follow under the facts of this case.
There is complaint also that the sheriff, at the time he arrested appellant, did not then have on a cap and badge which is made, by the terms of chapter 47, Acts Second Called Session of 41st Legislature, 1929 (Vernon's Ann. P. C., Art. 803a), a part of the uniform commanded by said act to be worn by all officers when they arrest, with or without warrant, any person for violation of the laws of this State relating to the speed of automobiles. By the terms of said act authority to arrest for such violation of the law is expressly denied any officer unless he wears a diamond shape badge and a cap, coat and trousers of blue or dark grey.
By the terms of Sec. 8, Chap. 42, Acts of the Second Called Session of 41st Legislature, 1929, (Vernon's Ann. P. C., Art. 827a, Section 8), the maximum rate of speed for automobiles on public highways in Texas is now 45 miles per hour. Article 803, P. C., 1925, in general terms, authorizes any officer to arrest without warrant any person found violating the provisions of the preceding chapter, which is Chap. 13, Title 1 of our Penal Code, which chapter includes speeding in cars. By other provisions of our law officers are commanded to arrest without warrant persons committing offenses in certain cases. It is the plain statutory duty of every peace officer of this State to promptly and faithfully execute all process, including warrants of arrest, which are placed in their hands, and punishments are provided by law for such officers as wilfully or negligently fail in such duties.
Whether intended or not, — there are no distinctions made by the terms of Chap. 47, supra, between officers in the cities and in the country, between sheriffs, constables, State rangers or city officers, whether with or without warrant, whether the offense be committed in the view of the officer, or the warrant be brought to him for execution after the offense has been committed, whether the matter be one of emergency, or one in which there is ample time to secure and don the distinguishing apparel demanded by said statute. Sheriffs and State rangers as well as rural constables out in the wide open spaces from Texline to Brownsville may, under our law, arrest in whatsoever garb they please or may happen to have on when the occasion arises, — offenders for murder, robbery, theft, etc., etc.; but under the terms of Chap. 47, supra, they may not in any way engage in the arrest of one whose offense is the dangerous one of driving a car at a rate of speed in excess of 45 miles per hour on our public highways, unless such officers not only have a uniform consisting *Page 297 of a diamond badge, a cap and a coat and trousers of blue or dark grey, — but also have it on at the very time they make such arrest. If the sheriff at Alpine sees some speed fiend coming 75 miles an hour down the street toward their beautiful new high school, though on the campus and surrounding streets contiguous thereto there be hundreds of children, if such officer happen to be wearing his customary comfortable sombrero, he can not interpose the law's protective and arresting arm, but must rush home or to his office and get his badge and cap and don his coat and trousers of blue or dark grey, no matter how many children may be killed or how plain and patent his duty be in the premises. Even so of the sheriffs at Amarillo and El Paso and other places, and this too without exception for emergency or any other regard.
To give effect to this law in these days when every man with a wheelbarrow income must needs have his automobile and strain every nerve to keep up with the procession, and make every effort to see who can get there the quickest, — the officer who wants to do his duty can never be without his faithful badge, cap and coat and pants of blue or dark grey. The logic of the giving effect to a statute like this would be that if the legislature saw fit and was willing to go to that extent, they might say that officers seeking to arrest for murder must wear a garb of a certain color, cut and texture, — another when the offense is rape; still another when the offense is hijacking, etc., etc., and that the courts will uphold such legislation. The mere statement of such a proposition demonstrates its folly. If the legislature can constitutionally regulate the garb of one set of public officers in the discharge of any part of their duty, they can pass laws directing what garb shall be worn by all officers when acting as such.
Section 1 of Art. 2 of our Constitution, announcing the separation of the powers of our government into three distinct departments, forbids unwarranted interference of one department with another in the following language: "And no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instance herein expressly permitted."
The wearing of one kind of color or cut of clothes can by no stretch of the imagination be held, ipso facto, to legitimately affect the legality or fairness of an arrest of one charged with crime, and in our opinion such statute as that above discussed is an unwarranted interference by one branch of our government with another. State v. Moore, 57 Tex. 314; Houston Tap Ry. Co. v. Randolph, 24 Tex. 317.
There is no provision of our statute which furnishes to or provides for the officer, the equipment and paraphernalia made necessary as a prerequisite to the discharge of his duties by an officer acting under this statute. In the march of the seasons the officer must be provided with a winter cap, coat and pants of blue or dark grey, as well as a summer *Page 298 outfit of like hue and description inasmuch as the wearing of same in the discharge of his official duties is made compulsory. What right has the legislature, in view of our Bill of Rights, Sec. 19, Art. 1, of our Constitution, which forbids that any citizen of this State, — which includes its downtrodden peace officers, — shall be deprived of property, privileges and immunities except by due course of the law of the land, — to compel by statute a constable whose income from his office is at best all too scant, to invest his money in two changes of raiment, i. e. a summer and a winter cap, coat and trousers of blue or dark grey, before he can adequately enforce the laws or protect the people of his community from the all pervading speed fiends who throng our highways? The legislature passed a law forbidding under pains and penalties that any man should build three miles of straight fence without a gate therein. They provided no compensation for the making of the gate. The law was stricken down. Dilworth v. State,36 Tex. Crim. 189, 36 S.W. 274. In holding unconstitutional a law requiring the erection at all stations on the lines of the railway companies in this State, of water closets, our Supreme Court held such law so oppressive, arbitrary and practically impossible of compliance therewith as to be a violation of the 14th Amendment to the Federal Constitution. See M., K. T. Ry. Co. v. State, 100 Tex. 420, 100 S.W. 766. So say we of the provisions of the statute under consideration. It practically says to every peace officer in this State, whose duty under mandatory provisions of our general laws it is to enforce the law and in emergency cases make arrests at any hour or place when the occasion arises, — that such officer may not perform such plain duty, unless forsooth he be then properly clad, that is, have on a diamond-shaped badge, a cap and a coat of blue or dark grey and trousers of like hue.
Illustrations might be multiplied ad infinitum setting forth the impossibility of the enforcement of such law compatible with the provisions of numerous other statutes of this State.
We can not bring ourselves to believe that the legislature intended to thus hamper, hinder and cripple the officers of this State, or that they purposed to penalize for wilful failure and neglect every sheriff, deputy, ranger, etc., who fails to provide himself with such accouterment, — and by reason of such failure is unready, when occasion calls upon him, to protect humanity from the dangers of speeding cars, to arrest those thus violating the law, and who thus would subject himself to punishment for such wilful failure and neglect.
For the reasons above stated we can not agree with appellant's contention, and hold that the provisions of said Chapter 47, supra, are violative of constitutional inhibitions.
The judgment will be affirmed.
Affirmed. *Page 299
ON MOTION FOR REHEARING.