Counsel for the City have referred this court to many judicial decisions of the Federal and state courts in support of the contention that the ordinance in question does not offend against the general rule which declares that the power to make laws is a function of the law-making body and that such power cannot be delegated to others. The cases cited relate to matters of a civil nature and are therefore not available as precedents in regard to a penal offense. Such *Page 278 of the cases cited which apparently sustain the delegation of power are from the Federal courts, in which the rule has been relaxed to some degree in accord with the announcement of the Supreme Court of the United States in Wayman v. Southard, 10 Wheat. 1, 42, 6, L.Ed., 262, as follows: "It will not be contended, that congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But congress may certainly delegate to others, powers which the legislature may rightfully exercise itself. * * * The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details."
The relaxed interpretation of the rule has not been followed under any of the statutes or decisions in this state, particularly in their application to the penal laws. The statutes applicable are the following:
"The design of enacting this Code is to define in plain language every offense against the laws of this State, and affix to each offense its proper punishment." (Article 1, P. C.).
"In order that the system of penal law in force in this State may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty is affixed thereto by the written law of this State." (Article 3, P. C.).
The delegation of the lawmaking power is expressly forbidden by the Constitution of Texas, sec. 28, art. 1. See Dockery v. State, 93 Tex.Crim. Rep., 247 S.W. 508; Ex parte Leslie, 87 Tex.Crim. Rep., 223 S.W. 227; Ex parte Maynard, 101 Tex.Crim. Rep..
In Tex. Jur., vol. 12, p. 223, it is said:
"The Penal Code provides that the design of enacting it 'is to define in plain language every offense against the laws of this state, and to affix to each offense its proper punishment'; that 'no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty is affixed thereto by the written law of this state'; and that 'no person shall be punished for an offense which is not made penal by the plain import of the words of a law.'
"Under the foregoing provisions no act or omission is a crime unless made so by statute. To warrant a conviction the act or omission must be plainly and unmistakably within the definition of the statute, and within both the letter and the *Page 279 spirit of the law, and if there is any fair doubt whether the statute embraces it, that doubt must be resolved in favor of the accused. There can be no constructive offenses, and where the statute expressly limits the punishment to certain classes of persons, or for the doing of certain acts, only those brought by the facts within such definitions are amenable. But it is not necessary that all penal enactments be appended to the code as amendments to it."
In the absence from the ordinance (copied in the original opinion) of any statement relating to what characterizes a taximeter of "standard" size and design, no guide is furnished by which the Chief of Police shall be governed in exerting the authority conferred upon him to decide whether in a given instance a proffered taximeter is of "standard" size and design. Apparently the ordinance demands of the Chief of Police that after deciding that the taximeter with which an automobile is equipped is, in his judgment, of "standard" size and design, he shall approve it provided in its adjustment it meets with the specifications appearing in the five subsequent subdivisions of the ordinance. Therefore the ordinance does not specifically define the act which it condemns as criminal but only denounces as an offense the refusal to abide and obey the unguided decision of the Chief of Police.
Obedience to the articles of the statute quoted (articles 1 and 3, P. C.), and following many decisions giving effect to the statutory provisions mentioned, we feel constrained to overrule the motion for rehearing. It is so ordered.
Overruled.
I concur in the foregoing opinion.
HAWKINS, Judge.