(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, my 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 incor*834porated 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 unconstitutional 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, Vernon’s Ann.St., 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 upon the case of Gilderbloom v. State, 160 Tex.Cr.R. 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, Tex.Cr.App., 276 S. W.2d 296. The Gilderbloom case is wrong, and ought not to be the law. However, the Gilderbloom 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 case 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 *835predicates 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 shall 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 Tex.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, subd. 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 ín no case are the words ‘force and arms’ or ‘contrary to the form of the statute’ necessary.”
The rules with respect- to allegatipns 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 *836in 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 1941 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.