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 Tex.Cr.R. 322, 248 S.W.2d 749, without discussing or considering the constitutional questions raised, held that the 1951 Act superseded the 1941 amendment of Sec. 8 of Art. 827a, V.A.P.C., we have decided that we should consider the question of the validity of appellant’s conviction as under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. P.C. 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 exists with respect to pedestrians or other traffic or by reason of weather or highway conditions; and in every event, speed shall be so 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 semi-trailers 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), paragraph (2) above.
“Daytime”, “nighttime”, “business district” and “residence district” are defined also in Subsection 1 of the Statute and it *837is provided that the prima facie speed limits set forth therein may be altered as authorized in Subsections 2 and 3.
In Subsection 2 the 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 a highway * * to determine and declare a reasonable and safe prima facie speed limit at such place, but it 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 Commission 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-zvit: A Chrysler automobile at an unreasonable and imprudent speed under the conditions then existing, to-zvit, 90 miles per hour, zvhich ivas 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 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.P.C.) 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.
Validity 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 State Highway Commission was required, nor would the absence of such action affect the *838prosecution. Under the allegations of the information the 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 Tex.Cr.R. 512, 228 S. W. 566; Parroccini v. State, 90 Tex.Cr.R. 320, 234 S.W. 671; Ex parte Slaughter, 92 Tex.Cr.R. 212, 243 S.W. 478, 26 A.L.R. 891; Ex parte Carrigan, 92 Tex.Cr.R. 309, 244 S.W. 604; Ladd v. State, 115 Tex.Cr.R. 355, 27 S.W.2d 1098; Ex parte Chernosky, 153 Tex.Cr.R. 52, 217 S.W.2d 673.
Such holdings are said, however, to be against the weight of authority in other jurisdictions. Gallaher v. State, 193 Ind. 629, 141 N.E. 347, 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 speed 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, 291 Ill. 449, 126 N.E. 201; Gallaher v. State, 193 Ind. 629, 141 N.E. 347, 29 A.L.R. 1059; Smith v. State, 186 Ind. 252, 115 N.E. 943; State v. Goldstone, 144 Minn. 405, 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, 209 Mass. 24, 95 N.E. 214, 216, 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 was 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, 193 N.E. 629, 141 N.E. 347, 29 A.L.R. 1059, and in Smith v. State, 186 Ind. 252, *839115 -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 regard 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, 291 Ill. 449, 126 N.E. 201, 202, in upholding a statute almost identical with the Indiana statute, said:
“If the only provision of section 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 himself 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 speed 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 *840State. The contention that it is vague and indefinite, and therefore void, is overruled.
Appellant’s motion for rehearing is overruled.