(concurring on rehearing).
• Since a rehearing herein has been denied, with the division in this' court on the question discussed by its members upon the original hearing remaining the same, and since a new Attorney General of the state, and an able member of the bar as amicus curias, have appeared in arguments on the motion for rehearing, it is deemed appropriate for this addendum to be made to the former concurring opinion:
It was before pointed out that the Supreme Court of Texas in its recent decisions in what are known as the Moratorium Cases [the leading one being Travelers’ Ins. CO. v. Marshall, 76 S.W.(2d) 1007, 1009], had held that the police power in Texas was subservient to section 16, art. 1, of our Bill of Rights, prohibiting the impairment of the obligation of contracts, and in that respect differed from the Constitutions of the United States and of many, if not all, the other states Of the American Union; that opinion has now been officially reported, an abstract of it sufficient for the present puiposes being as follows:
“Article 1 of the Constitution, comprising 29 sections, is designated the Bill of Rights, and consists of express limitations of power. The last section declares: ‘Sec. 29. To guard against transgi’essions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted, out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, * * * shall he void.’ (Italics ours.) * * *
“We are asked, however, to hold that, under th'e police power, one of the powers of government (State v. Coleman, 96 Conn. 190, 113 A. 385) vitalized by emergency conditions, the Legislature had the authority to pass the measure before us. . We are asked to do this, although the Bill of Rights, section 16, *161expressly prohibits the enactment of laws impairing- the obligation of contracts. Oan we do this? * * *
“Obviously all these questions must be answered in the negative. This is so because the pronouncements of the Constitution are ‘imperious, supreme and paramount.’ * * *
“On th'e concession, for the purposes of this decision, that the majority opinion in the Blaisdell Case [Home Bldg. & Loan Ass’n v. Blaisdell], 290 U. S. 398, 54 S. Ct. 231, 78 L. Ed. 413, 88 A. L. R. 1481, at the time it was delivered correctly interpreted the contract clause of the Federal Constitution in relation to the exercise of the police power by the states (article 1, § 10, cl. 1), it can have no application to the Constitution of Texas. The Federal Constitution, it is said, contains no express limitations on the police power of the States as such. 12 Corpus Ju-ris, p. 928, § 440. The majority opinion in the Blaisdell Case, 290 U. S. 398, 54 S. Ct. 231, 78 L. Ed. 413, 88 A. L. R. 1481, seems to be based upon the proposition that, although the contract clause in the Federal Constitution prohibits the impairment of contracts by state legislation, still a wide range of police control may be exercised by the , states, varying with differing conditions, even to the extent of impairing previously existing contracts. 290 U. S. pages 434, 435, 439, 54 S. Ct. 231, 78 L. Ed. 413, 88 A. L. R. 1481. It is quite obvious the same rule of interpretation cannot be applied to the contract clause in our State Constitution, for the reason that, unlike the Federal Constitution, the rights guaranteed by that clause (section 16, art. 1) are by section 29 of the Bill of Rights ‘excepted out of the general powers of government, * * * a/nd all laws contrary thereto, * * * shall he void.’ This is an express limitation on the police power which does not appear in the Federal Constitution, a limitation which plainly prohibits the enactment of legislation the effect of which is to impair the obligation of contracts. * * *
“We recognize, of course, that the police power is broad and comprehensive; but the Constitution forbids its exercise when the result would be the destruction of the rights, guaranties, privileges, and restraints excepted from the powers of government by the Bill of Rights.
“ ‘However broad the scope of the police power, it is always subject to the rule that the legislature may not exercise any power that is expressly or impliedly forbidden to it by the state constitution.’ 12 C. J. p. 929, § 440; Bell v. Hill (Tex. Sup.) 74 S.W.(2d) 120; State ex rel. Cleveringa v. Klein, 63 N. D. 514, 249 N. W. 118, 86 A. L. R. 1523; Milkint v. McNeeley, 113 W. Va. 804, 169 S. E. 790, and other authorities supra.
“Since the impairment of the obligation of contracts is prohibited by section 16, article 1, of the Bill of Rights, without any specified exception in favor of legislative action to the contrary during industrial depressions or emergency periods, we are without power to write such an exception into the organic law.”
So far as Texas is concerned, therefore, it is thus plainly held that neither the existence of an emergency, however great, nor the fact that any business is now strongly “affected with a public interest,” can give the Legislature the power to override the express limitation upon the operation of the police power in Texas thus proclaimed in section 16 of article 1 of our State Constitution; nor have the learned counsel for any of the parties here either originally or upon rehearing cited any authorities holding to the contrary under a Constitution on a parity in this respect with our own in any state in the Union; on the contrary, the Constitutions of Missouri, Colorado, and Georgia, from which come three of the leading'eases relied upon, all fail to so expressly make the police power subservient to their contract clauses, or else have none; the Supreme Court of the United States itself, as a review of its holdings on this subject will disclose, is always careful to say that the power of Congress expressly to prohibit and invalidate contracts, although previously made and valid when made, only exists when they interfere with the carrying out of the policy Congress has the constitutional power to adopt; that qualification is repeatedly reiterated in its very recent holding in the Gold-Clause Cases, Norman v. B. & O. Ry. Co. (U. S. v. Bankers’ Trust Co.) 55 S. Ct. 407-427, 79 L. Ed. -, in two eases; in such reiteration the ease of Hudson County Water Co. v. McCarter, 209 U. S. 349, 357, 28 S. Ct. 529, 52 L. Ed. 828, 14 Ann. Cas. 560, and Union Dry Goods Co. v. Georgia Public Service Corp., 248 U. S. 372, 375, 39 S. Ct. 117, 63 L. Ed. 309, 9 A. L. R. 1420, and many others, are relied upon.
Wherefore it is again respectfully submitted that the act here under review not only was intended to apply to pre-existing contracts, but that it directly contravened this express limitation upon legislative powers in article 1, § 16, of the Texas Constitution, and is therefore null and void.