dissenting.
This court was created for the purpose of furnishing to one convicted of crime a tribunal to which he might appeal for a determination as to the legality of that conviction.
In keeping with that purpose, I now entertain and have always entertained the view that every appellant is entitled to his day in court and to have this court pass upon his appeal. Prior to the opinion in this case I could not believe this court would affirm a conviction without performing that judicial function. That, however, is exactly what has happened here. In this case, *122my brethren have not only failed to pass upon the appeal, but they have expressly refrained from so doing.
By this appeal, appellant claimed that the conviction was erroneous and should not be permitted to stand, for two reasons, as follows: (a) The statute under which this conviction was obtained is unconstitutional and void, and (b) the information did not allege a violation of the law, because the statute upon which it was based is void.
My brethren affirm this conviction without determining either of those contentions.
If the right of appeal means anything at all, surely it means that the appellant is entitled to have this court either sustain or overrule his contentions when those contentions are properly before this court for determination.
The action of the majority of this court in affirming this conviction without passing upon the contentions presented by the appeal is indefensible and inexcusable. It deprives this appellant of his constitutional right of appeal.
The charging part of the information upon which this conviction was obtained reads as follows:
“* * * did then and there unlawfully operate and drive a motor vehicle, to-wit: A Chrysler automobile at an unreasonable and imprudent speed under the conditions then existing, to-wit, 90 miles per hour, which was then and there a speed greater than was reasonable and prudent, on a public highway of Texas, said highway being a part of the State Highway system and not situated within the limits of an incorporated city or town and on which the State Highway Commission, by an order entered on its minutes, had determined, upon an engineering and traffic investigation, the prima facie reasonable and prudent and safe speed limit applicable, at such time and zone or place, to be 60 miles per hour, as designated and identified by signs erected by the State Highway Commission.”
The information was drawn under Art. 827a, Sec. 8, Subsection 1(a), Vernon’s P.C., being Chap. 346, Acts Regular Session of the 52nd Legislature, in 1951, which will be referred to as the Act of 1951.
Appellant challenges the statute as being void and unconsti*123tutional for the reason that it is vague and indefinite and uncertain and for that reason violates Arts. 3 and 6 of the Penal Code of Texas, and Article 1, Sec. 19, of the Texas Constitution, and the due process clause of the Fourteenth Amendment to the United States Constitution; that the act creating the statute is an unlawful delegation of powers of the legislature in violation of Art. 2, Sec. 1, of the Texas Constitution; and that the act authorizes administrative agencies to suspend laws in violation of Art. 1, Sec. 28, of the State Constitution.
The validity of the information is challenged for the same reasons, as charging no offense.
My brethren decide none of those contentions. They do not decide that the statute, or the information, is or is not good, or subject to the defects urged. The conviction is affirmed upon the conclusion that if the statute is void — as appellant contends— then there was a prior valid statute (Chap. 506, Acts Regular Session of the 47th Legislature, in 1941) which will be referred to as the Act of 1941, which made it unlawful — not to do that which the information in this case charged that appellant did— but to do that which the evidence in this case showed appellant actually did.
Of course, such a holding decides absolutely nothing. The statute under which this conviction was obtained is neither sustained nor condemned. Its validity is not sustained, nor its invalidity attested. The statute, under that holding, is neither good nor bad.
My brethren rely unon the case of Gilderbloom v. State, 160 Texas Cr. Rep. 471, 272 S.W. 2d 106, as authorizing their holding.
In the first place, I demonstrated the fallacy — insofar as I am concerned — of the holding in that case by my dissenting opinion in Rowe v. State, 276 S.W. 2d 296. The Gilderbloom case is wrong, and ought not to be the law. However, the Gilder-bloom case does not sustain the holding of my brethren in this case.
In the Gilderbloom case, the offense was the same under both statutes — that is, the one under which the conviction was obtained and the prior statute relied upon to sustain the conviction. In other words, the allegations of the information charge an offense under either statute. The two statutes dealt with in that *124case differed only in the punishment authorized to be assessed. Such is not true of the two statutes here involved.
The statute under which this conviction was had (the 1951 Act) creates and defines an offense entirely different from that denounced in the prior Act of 1941. The information in this case does not charge acts which would constitute a violation of the 1941 Act.
Inasmuch as my brethren have not upheld or condemned the 1951 Act or passed upon its validity, I will not express my views upon that subject at length but will content myself by saying that, in my opinion, the Act of 1951 is void for the reasons assigned by appellant.
To my mind, the statute under which this conviction was obtained is invalid and a prosecution may not be conducted thereunder.
I will, however, express my views on the theory upon which the majority opinion predicates the affirmance of this case: that is, the utilization of the Act of 1941 to sustain the conviction.
In the first instance, the Act of 1941 is subject to the same objection as that to which the Act of 1951 was subject — that is, the unlawful delegation of legislative power and the unlawful suspension of laws by an agency other than the legislature. The Act of 1941 authorizes, as does the Act of 1951, the complete destruction of the act there made unlawful, by authorizing administrative tribunals to change, alter, and amend at their pleasure and without prior notice the unlawful act created by the legislature.
The legislature is prohibited by Art. 2, Sec. 1, and Art. 1, Sec. 28, of the Constitution of this state from extending to those agencies the right mentioned.
Another very cogent reason exists which demonstrates the fallacy, to me, of the majority opinion.
The Act of 1951 provides, in Sections 2 and 3 of Subsection 6 of Section 8, as follows:
“If any portion of this Act is held unconstitutional by a court of competent jurisdiction, the remaining provisions hereof *125shall nevertheless be valid the same as if the portion or portions held unconstitutional had not been adopted by the legislature.”
“Any part of any law in conflict with the provisions of this Act is hereby expressly repealed.”
It is difficult for me to conceive how that language may be interpreted or construed as not repealing the Act of 1941.
If the Act of 1951 was valid, the 1941 Act was, in all things, invalidated and superseded. If the Act of 1951 was invalid, then the Act of 1941 was repealed because that law was in conflict with the Act of 1951. Sec. 3 of Subsection 6 repealed the Act of 1941, without reference to the validity of the Act of 1951. Moreover, under Sec. 2 of Subsection 6, if everything in the Act of 1951 was invalid save and except the repealing clause, then that clause was valid and it repealed the Act of 1941. As supporting this statement, I quote from 39 Texas Jur., Statutes, Sec. 70, at page 135, where the controlling rule is stated as follows:
“So where an act declares that its partial invalidity shall not affect other parts or sections, the repealing clause remains operative although the remainder of the act is held to be unconstitutional.”
I call attention to this further defect in the reasoning of my brethren: In the state’s pleading, the indictment, or the information “The offense must be set forth in plain and intelligible words.” Art. 396, Sec. 7, C.C.P.
Art. 397, C.C.P., requires that “Everything should be stated in an indictment which is necessary to prove.”
Art. 405, C. C. P., specifies the certainty of the allegation of an indictment, as follows:
“Certainty; what sufficient. — An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment; and in no case are the words ‘force and arms’ or ‘contrary to the form of the statute’ necessary.”
*126The rules with respect to allegations in an indictment and the certainty required apply also to an information. Art. 416, C.C.P.
These statutes all become material and controlling here, because the information in this case charged a violation of the 1951 Act. The acts there charged are not made unlawful by the 1941 Act. Therefore, when my brethren affirm this conviction for an offense as a violation of the 194Í Act they do so without an information which in any manner complies with the statutes above set forth.
When appellant was called upon to plead in this case, it was to an information charging him with a violation of the Act of 1951. Nowhere, at no time, has he been called upon or given the opportunity to defend against having violated the Act of 1941. Yet he stands convicted of violating the Act of 1941, and it is that conviction which is here affirmed.
I respectfully dissent.
ON appellant’s motion for rehearing
WOODLEY, Judge.In view of the contention that a section of the Act of 1941 amending Sec. 8 of Art. 827a, V.A.P.C. is subject to the same constitutional objection and exception as Section 1 of the 1951 Act, and the fact that this court, in Hernandez v. State, 157 Texas Cr. Rep. 322, 248 S.W. 2d 749, without discussing or considering the constitutional questions raised, held that the 1951 Act superseded the 1941 amendment of Sec. 8 of Art. 827a V.A.C.P., we have decided that we should consider the question of the validity of appellant’s conviction as under the 1951 Act.
Subsection 1 of Sec. 8 of Art. 827a V.A.C.P. as reenacted and amended by the 52nd Legislature (1951) p. 589, Ch. 346, reads in part as follows:
“Speed restrictions, (a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing, having regard to the actual and potential hazards when approaching and crossing an intersection or a railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard *127exists with respect to pedestrians or other traffic or by reason of weather or highway conditions; and in every event, speed shall be controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.
“(b) Where no special hazard exists that requires lower speed for compliance with subsection 1(a) of this Section, the speed of any vehicle not in excess of the limits specified in this subsection or established as hereinafter authorized shall be lawful, but any speed in excess of the limits specified in this subsection or established as hereinafter authorized shall be prima-facie evidence that the speed is not reasonable or prudent and that it is unlawful:
“(1) Thirty (30) miles per hour in any business or residence district for all vehicles;
“(2) Sixty (60) miles per hour during the daytime and fifty-five (55) miles per hour during the nighttime in locations other than business or residence districts for all vehicles except commercial motor vehicles, truck-tractors, trailers, or semitrailers as defined in this Act and all motor vehicles engaged in this State in the business of transporting passengers for compensation or hire.”
Other portions of the statute provide lower prima facie speed limits for the types of vehicles excepted in Subsection 1(b), paragraphs (2) above.
“Daytime,” “nighttime,” “business district,” and “residence district” are defined also in Subsection 1 of the statute and it is provided that the prima facie speed limits set forth therein may be altered as authorized in Subsections 2 and 3.
In Subsection 2 the Texas State Highway Commission is granted authority, whenever it “shall determine upon the basis of an engineering and traffic investigation that any prima facie speed hereinbefore set forth is greater or less than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of the highway * * *,” to determine and declare a reasonable and safe prima facie speed limit at such place, but is further provided that the “State Highway Commission shall not have the authority to modify or alter the basic rule set forth in Subsection 1(a) nor to authorize by a *128Commission Minute speeds for any class of vehicles in excess of the maximum values hereinbefore set forth for said class of vehicles in Subsection 1(b), paragraphs (2), (3), and (4).”
The charging part of the information upon which appellant stands convicted reads as follows: “Omar Blake Rowland did then and there unlawfully operate and drive a motor vehicle, to-iuit: A Chrysler automobile at an unreasonable and imprudent speed under the conditions then existing, to-wit, 90 miles per hour, tuhich was then and there a speed greater than was reasonable and prudent, on a public highway of Texas, said highway being a part of the State highway system and not situated within the limits of an incorporated city or town and on which the State Highway Commission, by an order entered on its minutes, had determined, upon an engineering and traffic investigation, the prima facie reasonable and prudent and safe speed limit applicable, at such time and zone or place, to be 60 miles per hour, as designated and identified by sign erected by the State Highway Commission.” (Emphasis ours.)
The italicized portion of the information charges the violation of Subsection 1 of the 1951 Act, in driving an automobile at a speed of 90 miles per hour, a speed greater than was reasonable and prudent under the conditions existing.
The legislature has provided a 60 mile per hour maximum speed and has provided that driving a vehicle in excess of such speed shall be prima facie evidence that the speed is not reasonable and prudent and is unlawful. The legislature has also provided that the speed for any class of vehicles in excess of such maximum (fixed in Subsection 1(b), paragraph (2) could not be authorized. Hence, the allegation that the Texas State Highway Commission also had determined that 60 miles per hour was reasonable and prudent added nothing to and subtracted nothing from the state’s pleading.
The question before us is whether the 1951 statute (Art. 827a, Sec. 8, V.A.C.P.) as applied to the driving of a vehicle upon a public highway of this state at a speed in excess of 60 miles per hour, which speed was unreasonable and imprudent under the conditions then existing, is constitutional.
The statute is attacked as unconstitutional on the ground that it constitutes an unlawful delegation' of powers of the legislature in violation of Art. 2, Sec. 1 of the Constitution of Texas.
*129Validity of the conviction appealed from is not affected by the provisions of the statute relating to prima facie speed limits determined and declared by the State Highway Commission.
The statute contains a provision that if any portion of the act is held unconstitutional by a court of competent jurisdiction, the remaining provisions hereof shall nevertheless be valid the same as if the portion or portions held unconstitutional had not been adopted by the legislature.
The law alleged to have been violated by appellant rests alone upon the act of the legislature and no action by the Texas State Highway Commission was required, nor would the absence of such action affect the prosecution. Under the allegations of the information the Texas State Highway Commission had not determined that the 60 mile speed limit was “greater or less than was reasonable and safe” but had determined and declared the same speed limit as had the legislature.
For the reasons named, the contention that the 1951 Act authorizes the State Highway Commission to suspend laws in violation of Art. 1, Sec. 28, of the Constitution of Texas will not be passed on.
The constitutionality of the statute is also questioned on the ground that it is void and unconstitutional because it is vague and indefinite.
To be consistent with the decisions and reasoning in the prior opinions of this court we would be required to hold that the basic rule set out in Subsection 1, above quoted, standing alone and without the prima facie speed provisions is so indefinite and of such uncertain construction that it cannot stand as a penal statute. Russell v. State, 88 Texas Cr. Rep. 512, 228 S.W. 566; Parroccini v. State, 90 Texas Cr. Rep. 320, 234 S.W. 671; Ex parte Slaughter, 92 Texas Cr. Rep. 212, 243 S.W. 478; Ex parte Carrigan, 92 Texas Cr. Rep. 309, 244 S.W. 604; Ladd v. State, 115 Texas Cr. Rep. 355, 27 S.W. 2d 1098; Ex parte Chernosky, 153 Texas Cr. Rep. 52, 217 S.W. 2d 673.
Such holdings are said, however, to be against the weight of authority in other jurisdictions. 29 A.L.R. 1062 and 1066.
Do the provisions of Subsection 1(b), fixing a maximum speed limit of 60 miles per hour and providing that any speed in excess of said limit shall be prima facie evidence that the *130speed is not reasonable or prudent and that it is unlawful, remove the indefiniteness of the basic rule set forth in Subsection 1(a)? This is the question we are called upon to decide.
Similar statutes of other states have been upheld against the contention that they were void for uncertainty and indefiniteness. People v. Beak (Ill.) 126 N.E. 201; Gallaher v. State (Indiana) 141 N.E. 347; Smith v. State, (Indiana) 115 N.E. 943; State v. Goldstone (Minnesota) 175 N.W. 892; See also Blashfield’s Cyclopedia of Automobile Law and Practice, Sec. 5308.
We are cited to no authority holding to the contrary and we have found none.
In Commonwealth v. Cassidy, 95 N.E. 215, the Supreme Court of Massachusetts construed a similar statute as requiring the court or jury to give due weight to the prima facie speed and the testimony coming from both the commonwealth and the defendant, but held the real question to be whether the speed was greater than was reasonable and proper, having regard to the traffic and the use of the way and the safety of the public, the burden being on the commonwealth to show that it was.
This, as we understand it, is true under Art. 827a, Sec. 8, of the Texas Statute.
The Massachusetts Supreme Court further held “in some cases a defendant may be convicted even if he has not exceeded the rate named in the prima facie clauses of the statute, and in some he may be acquitted even though he may have exceeded it.”
We are in accord with the latter statement, but express no opinion on the question of whether one may be convicted under the Texas statute who does not exceed the prima facie limit. That question is not before us, appellant having admittedly driven at a speed in excess of 60 miles per hour, the maximum prima facie speed limit fixed by the legislature and at a speed greater than toas reasonable and prudent under the conditions existing at the time and place.
The Indiana statute upheld by the Supreme Court of that state in Gallaher v. State, 141 N.E. 347, 29 A.L.R. 1059, and in Smith v. State, 115 N.E. 943, provides that no person shall drive or operate a motor vehicle upon any public highway in that state at a speed greater than is reasonable or prudent, having *131regard to the traffic and the use of the way, or so as to endanger the life or limb or injure the property of any person and provides that if the rate of speed of a motor vehicle upon any public highway outside the limits of an incorporated city, town or village, exceeds the rate of speed fixed in the statute, such rate of speed shall be prima facie evidence that the person operating such motor vehicle is running at a rate of speed greater than is reasonable and prudent having regard to the traffic and use of the way or so as to endanger the life or limb or injure the property of any person.
The statute was construed as forbidding the operation of motor vehicles at a speed greater than is reasonable and prudent having regard to the traffic and use of the way and declaring what speed shall be prima facie unlawful under each of five sets of circumstances set out in the statute.
In Gallaher v. State, supra, the Indiana Supreme Court concluded that the statute taken as a whole defined the offense forbidden by it with certainty to the degree that persons who read it may know exactly what evil is intended to be prohibited, and that it fixes a standard of guilt by which an accused person may know the nature and cause of the accusation against him, and was not invalid.
In Smith v. State, supra, the same court said that the statute considered in its entirety clearly fixes a standard of care to be observed by the operator; that the statute placed on the state the burden of proving that the accused was driving at a speed exceeding the maximum set by the statute and the fact that proof of such speed is made prima facie rather than absolute evidence of guilt serves only to permit a defendant to show, if he can, that under all the circumstances, the speed at which he was driving was not unreasonable or imprudent, or sufficient to endanger the person or property of another.
The Supreme Court of Illinois, in People v. Beak, 126 N.E. 201, in upholding a statute almost identical with the Indiana statute, said
“If the only provision of Sec. 10 were its first sentence, there might be some merit in the argument of counsel that the construction of the statute is subject to conjecture. The section further provides the exact speed which, if exceeded in various classifications of localities, shall be prima facie evidence of a violation of the law, and the evidence of plaintiff in error him*132self clearly indicates that he was violating the provisions of the statute as to the speed at which he was traveling* at and just before the time he was arrested by the officer. * * * The statute is sufficiently clear on the actual questions involved to inform anyone what the legislature intended to prohibit and punish.”
The holding in the above cases by the supreme courts of other states is that a statute prohibiting under penalty the driving of a vehicle on the highway at a sped greater than is reasonable and prudent, having regard to the traffic and use of the way, and specifying what speed shall be prima facie unlawful under designated circumstances is not void for uncertainty. 29 A.L.R. 1066 note; 26 A.L.R. 897, 898. Such holding appears to be in accord with reason. We are aware of no authority to the contrary.
We conclude that the provisions of Subsection 1 (b) fixing a 60 mile speed limit and providing that any speed in excess thereof shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful, renders the 1951 amendment and re-enactment of Art. 827a, Sec. 8, V.A.P.C. sufficiently definite as applied to one who drives a vehicle at a speed in excess of 60 miles per hour on any highway of this state. The contention that it is vague and indefinite, and therefore void, is overruled.
Appellant’s motion for rehearing is overruled.
ON appellant’s second motion for rehearing
MORRISON, Presiding Judge.The writer concurred in the majority opinion on appellant’s motion for rehearing. After more mature study and in the light of appellant’s brief, I have concluded that there is a serious question as to the soundness of the reasoning therein contained. I do, however, remain convinced that the original opinion on appellant’s motion to reinstate the appeal properly disposed of this case.
As stated in such opinion, this court need not pass upon the constitutionality of the present statute because, under the stipulations of fact in the record, it is established that the appellant did drive a motor vehicle at a speed in excess of sixty miles per hour upon a public highway in Reagan County, Texas. If the Act of 1951 as amended in 1955 is constitutional (and upon this *133question I do not commit myself), then the appellant is guilty under the provisions of that Act. If, in a case in which such holding became necessary, the Act of 1951 as amended in 1955 should be held to be unconstitutional, then the appellant would still be guilty under the 1941 Act.
Judge Woodley’s views are those stated in his opinion on rehearing, but he agrees with the writer that if the amendments of 1951 and 1955 are void, the conviction should be upheld as a prosecution under the 1941 Act. We so held in Judge Dice’s opinion on original submission and have not departed from that view.
Appellant’s second motion for rehearing is overruled.