(dissenting).
Because this conviction rests upon a statute that is void and unenforceable, being in violation of the Constitution of this state and of the due process clause of the Fourteenth Amendment to the Federal Constitution, I cannot agree to this affirmance.
I respectfully enter this dissent, as an addition to that heretofore filed.
The offense for which this appellant was convicted is charged in the information as follows:
“Omar Blake Rowland 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 * *
That such allegation charged a violation of Sec. 8 of Art. 827a, Vernon’s P.C., as amended in 1951 and 1955, is, to my mind, not subject to debate.
The aforesaid article will hereafter be referred to merely as Art. 827a.
The judgment of the trial court was affirmed by a majority of this court on January 30, 1957, by the adoption of the opinion of Commissioner DICE of this court. The affirmance was therein predicated upon the proposition that if Art. 827a was void *841and unconstitutional — as appellant insists— then Art. 827a as it existed in 1941 and prior to the amendment thereof in 1951 furnished the basis for this prosecution and the conviction could be predicated upon and upheld under that statute.
The opinion of Commissioner DICE speaks for itself, and I need not further detail the holding therein.
To that holding I filed a dissent, which also speaks for itself.
To the affirmance under the DICE opinion, appellant filed a motion for rehearing.
On April 3, 1957, the motion for rehearing was overruled by a majority of this court in an opinion by Judge WOODLEY. That opinion and the reasons therein set forth for the overruling of the motion for rehearing speak for themselves, and I need not here detail the holding.
To the order overruling his motion for rehearing, appellant filed his second motion for rehearing.
• That second motion for rehearing is today overruled in an opinion by Presiding Judge MORRISON, in which he refuses to agree to an affirmance of the conviction for the reasons ascribed by Judge WOODLEY in his opinion of April 3, 1957, but does agree to the affirmance of the conviction for the reasons assigned by Commissioner DICE in his opinion of January 30, 1957, which holds that the conviction could be had under Art. 827a as it existed in 1941.
To the correctness of those opinions I do not and can not agree. I do agree, however, to that part of Judge WOODLEY’S opinion wherein he says:
“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.”
The correctness of that statement, as shown by the prior decisions of this court, furnishes reason number one why this statute is void and unenforceable.
The prima facie evidence feature of the statute upon which Judge WOODLEY predicates his holding cannot be utilized to make valid a statute that is void.
This court finds itself in this position: One judge (WOODLEY) holds that Art. 827a as it presently exists and as it existed at the time of this prosecution is a valid statute in so far as it makes unlawful the operation of a motor vehicle over the highways of this state at a greater rate of speed than sixty miles per hour. The validity of Art. 827a is not tested as to other provisions thereof. Another judge (MORRISON) does not agree to the soundness of the WOODLEY opinion and refuses to affirm this case for the reasons therein, assigned. Rather, he agrees to the affirmance for the reasons assigned in the DICE opinion, which states that if the present statute be invalid the prosecution and conviction could be sustained as a violation of Art. 827a as it existed in 1941. The third, or remaining judge (the writer hereof) agrees with the contention of the appellant that Art. 827a as it presently exists is void and unenforceable because it violates the Constitution and laws of this state and the Federal Constitution.
It is my conviction that there exists no valid statute which makes unlawful the acts charged against this appellant by the information in this case and for which he has been convicted.
The only thing the majority of this court here decide is that the judgment of conviction should be affirmed. The opinions delivered are authoritative only for that purpose.
From the very inception of this case the appellant has insisted, both in the trial court and here, that Sec. 8 of Art. 827a is void and unenforceable because it violates and is in contravention of the Consti*842tution and laws of this state and of the due process clause of the Federal Constitution.
This court has not passed upon those contentions. The statute under which this conviction occurred is neither upheld nor condemned. Unless and until this court passes upon appellant’s contentions, he has been denied the full right of appeal as guaranteed by the Constitution and laws of this state. His contentions ought to be either sustained or overruled. If the statute is valid this court ought to say so; if it is invalid it should say so.
The fact that this court has not said one way or the other is, within itself, a sufficient reason for reversing this conviction, because no man should suffer a conviction under a statute which a majority of this court cannot say is valid and enforceable. Reasonable doubt and the presumption of innocence, it appears to me, would preclude an affirmance of this case under such conditions.
I address myself now to a discussion of the validity of Art. 827a, as against the contention that it is vague and indefinite and is, therefore, invalid:
Subsection 1 of Sec. 8 of Art. 827a, Vernon’s P.C., is set forth in the opinion dated April 3, 1957. It will therefore not be here copied.
It is my opinion that the sole and only act made unlawful by said section is the driving of a vehicle on a highway “at a speed greater than is reasonable and prudent under the conditions then existing.” I am of the further opinion that the quoted language is so vague, indefinite, and uncertain as to render that part of the statute invalid and wholly inoperative, because men of common intelligence must guess as to what is meant by “a speed greater than is reasonable and prudent under the conditions then existing,” and differ as to its application.
It has been the consistent holding of this court throughout the years that a vague, indefinite, and uncertain statute is invalid.
That holding was required by the express provisions of Art. 6 of our Penal Code, which reads as follows:
“Unintelligible law not operative. Whenever it appears that a provision of the penal law is so indefinitely framed or of such doubtful construction that it can not be understood, either from the language in which it is expressed, or from some other written law of the State, such penal law shall be regarded as wholly inoperative.”
The following authorities sustain and support the rule stated: Ex parte Chernosky, Tex.Cr.App., 217 S.W.2d 673; Ex parte Slaughter, 92 Tex.Cr.R. 212, 243 S. W. 478, 26 A.L.R. 891; Griffin v. State, 86 Tex.Cr.R. 498, 218 S.W. 494; Cinadr v. State, 108 Tex.Cr.R. 147, 300 S.W. 64; Dockery v. State, 93 Tex.Cr.R. 220, 247 S. W.2d 508; Ex parte Leslie, 87 Tex.Cr.R. 476, 223 S.W. 227; Overt v. State, 97 Tex.Cr.R. 202, 260 S.W. 856; Ex parte Wilmoth, 125 Tex.Cr.R. 274, 67 S.W.2d 289.
The correctness of the holding in those cases has not heretofore been questioned.
Under those authorities Art. 827a is vague and indefinite and in violation of Art. 6, P. C.
It is easy to conceive that various and different opinions would be held by men of ordinary intelligence upon the question of when a vehicle was operated in a reasonable and prudent manner at a given time and place. In order to know when a vehicle is operated at a greater speed than is reasonable and prudent, one must necessarily know what constitutes a reasonable and prudent operation of the vehicle under given conditions and circumstances.
When the meaning of “reasonable and prudent” rate of speed is determined under any given fact situation, the law is thereby for the first time declared.
So then, if there be any law in this state governing the rate of speed at which vehicles may be operated over the highways, *843it is not an act of the legislature but is the opinion, viewpoint, idea, whim, or caprice of some individual or set of individuals who thereby declares the law of this state.
In practical application, each individual who has any part in the arrest, prosecution, or conviction of one charged with a violation of the speed laws must first determine whether there be a law from a given state of facts as viewed by him and then determine from those same facts whether the accused has violated that law. The last individual or set of individuals to make that determination — that is, judge or jury— may, by determining that there is no law making unlawful the acts of the accused, thereby set aside the prior contrary determination of others.
Such being true, there could be, under such circumstances, no definite law fixing the rate of speed at which a vehicle would be unlawfully operated.
The statute creating the offense is not invalid solely because it is vague and indefinite ; it is invalid for the further reason that it is in violation of Sec. 56 of Art. Ill of the Constitution of this state, Vernon’s Ann.St., which prohibits the legislature from passing a special or local law where a general law can be made applicable.
Any offense denounced by Subsection 1 of Sec. 8 of Art. 827a depends upon the “conditions then existing.” In other words, if the conditions existing do not render or make the rate of speed unreasonable or imprudent, there exists no statute to be violated. The conditions existing when and where the vehicle is driven are therefore a necessary element and a part of the offense, without which it cannot be said that a law has been violated or that there exists a law which makes unlawful those acts.
So then we have, here, no general statute by the legislature which makes unlawful the operation of a motor vehicle at a speed greater than is reasonable and prudent, but, rather, such is made unlawful only when committed at a particular time and under special conditions and circumstances. It is apparent that such a law is a special law.
An act committed in a given circumstance or condition can occur but once. The same act committed at some other time or place would not be the same, because circumstances and conditions have changed. The statute here involved is therefore a special law making unlawful an act committed only at one time and, then, under special conditions and circumstances. That such law violates Art. Ill, Sec. 56, of the Constitution of this state is apparent.
I come now to a discussion of the prima facie evidence feature of the statute:
As pointed out in the opinion by Judge Woodley, Subsection 1(b) of Sec. 8 of Art. 827a provides that “ * * * 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 * * A limit of sixty miles per hour is fixed as the prima facie speed.
It is insisted, and Judge WOODLEY agrees, that such prima facie rule constitutes Art. 827a a valid statute making it unlawful to operate a motor vehicle over the highways of this state at a rate of speed in excess of sixty miles per hour.
To that contention by the state I do not agree.
The prima facie evidence rule is nothing more or less than a rule of evidence; it is not a rule of substantive law. It has reference and applies only to the mode or manner by and through which facts essential to the conviction might be established. 20 Am.Jur., Evidence, Sec. 4, page 35, defines the term as follows:
“The term ‘prima facie evidence’ which frequently appears in cases, denotes evidence which, if unexplained or uncontradicted, is sufficient in a jury case to carry the case to the jury and to sustain a verdict in favor of *844the issue which it supports hut which may be contradicted by other evidence, and is thus distinguished from conclusive evidence which the law does not allow to be contradicted.”
The definition of that term, applied by this court, is in keeping with the above, and is as follows :
“ ‘Prima facie evidence means evidence which is sufficient to establish the fact, unless rebutted; evidence which, standing alone and unexplained, would maintain the proposition and warrant the conclusion to support which it is introduced.’ ”
See: Ratliff v. State, 114 Tex.Cr.R. 142, 25 S.W.2d 343, 344, and Uptmore v. State, 116 Tex.Cr.R. 181, 32 S.W.2d 474.
In no event, then, could prima facie evidence be the medium through which a substantive rule of law could be promulgated or defined.
Being a rule of evidence, only, there must exist some fact issue upon which the rule might operate which necessarily presupposes, in a criminal case, an accusation under a valid statute and issues of fact joined.
As I have heretofore pointed out, there is, here, no valid statute regulating the speed of motor vehicles, and therefore there could exist no prosecution.
The prima facie evidence rule must be here construed as an act of the legislature prescribing a rule of evidence applicable in prosecutions arising under a void statute.
The statute, in attempting to define an offense, being void, no occasion or fact issue could therefore arise whereby the prima facie evidence rule could be applied or resorted to.
To ascribe and give to the prima facie evidence rule the effect of making a law or of making valid a statute which would otherwise be void would be contrary to one of the cardinal principles of statutory construction — which is that of legislative intent.
Had the legislature of this state intended to fix a definite speed limit in this state, it could very easily have said so. There would have been no occasion for the legislature to have relied upon intendment or supposition to accomplish that purpose. So the fact that the legislature did not fix a definite speed limit evidences its intention not to do so. The prima facie evidence provision of the statute cannot be gven the interpretation that it fixes a definite limit at which motor vehicles may be operated in this state. To so hold would be contrary to the legislative intent and would constitute judicial legislation.
The whole of the statute (Art. 827a) shows that the legislature never intended that the prima facie evidence feature thereof be considered or deemed as fixing speed limits in this state.
Regardless of the construction that is to be given to the prima facie evidence feature of the statute — that is, whether it is a rule of evidence only or a substantive law denouncing an offense — the fact remains that the legislature has delegated to administrative tribunals and agencies the right to fix the prima facie evidence rule.
It is obvious that such legislation is directly contrary to and violative of Sec. 1 of Art. II of the Constitution of this state, which prohibits the legislature from delegating to other persons or tribunals its legislative powers and the right to make, promulgate, and pass laws. Under that constitutional provision, the legislature and the legislature, only, has the power and authority to set forth, by statute, the acts that are unlawful in this state and to prescribe the rules of evidence by which an accused is to be tried for his liberty in the courts of this state.
Here, the legislature has not performed that function or exercised its legislative powers. To the contrary, it has delegated *845to administrative tribunals the right to perform that legislative function. The attempt by the legislature to confer upon the Highway Commission, the commissioners courts, and the governing bodies of cities and towns the right to fix the prima facie speed limits is contrary to and in violation of the Constitution of this state.
When the legislature delegated to and conferred upon other tribunals the right to change the prima facie evidence rules it had promulgated, it authorized those tribunals to suspend the very laws it had passed. In so doing, it destroyed every vestige or reference to prima facie evidence in the statute. When other tribunals were delegated the power to change the prima facie evidence rule, the legislature surrendered all its power and authority to legislate thereon, and thereby nullified everything it has said or attempted to say thereon.
Another provision of our Constitution has been here violated: Art. I, Sec. 28, of the Constitution of this state reads as follows :
“No power of suspending laws in this State shall be exercised except by the Legislature.”
When the legislature conferred upon administrative tribunals the unqualified and unlimited right to reduce the prima facie speed limit, it authorized and conferred upon those tribunals the right not only to suspend but to destroy any statute it had written fixing the maximum speed limit within the prima facie evidence rule, in direct violation of the above provision of our Constitution.
For the reasons assigned, there exists no prima facie evidence rule under Art. 827a, nor has the legislature defined or fixed by statute a definite speed at which motor vehicles are to be operated over the highways of this state.
There is another reason why the prima facie evidence rule, as fixed in the statute, may not and cannot be here utilized or relied upon by the state in this prosecution:
It will be noted that the information in ' this case alleges, among other things, that “ * * * the State Highway Commission, by an order entered upon 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 * * *.”
Under that allegation, the state relied not upon the prima facie rate of speed as fixed by the legislature but upon the prima facie speed that the Highway Commission had fixed, applied, and designated for that particular time, zone, or place.
The information having alleged that the Highway Commission had fixed the prima facie speed limit under the authority conferred upon it, the statutory prima facie speed limit is not here invoked and may not be relied upon by the state to sustain this conviction.
There is another and additional reason way Art. 827a is invalid:
Art. I, Sec. 9, of our State Constitution and the Fourth Amendment to the Federal Constitution expressly prohibit unreasonable searches and seizures. Titles 5 and 6, C.C.P., Vernon’s Ann.C.C.P. arts. 212 et seq., 304 et seq.
By special legislation the legislature has authorized peace officers to arrest for traffic violations, without warrant, and this court has held that such statute applies to speed violations. The right to arrest carries with it the right to search the person and the vehicle. Richardson v. State, Tex.Cr.App., 294 S.W.2d 844; Brown v. State, 159 Tex.Cr.R. 306, 263 S.W.2d 261.
No statute or decision authorizes a peace officer to make an arrest or a search upon mere suspicion, belief, and opinion that an offense has been committed; an arrest or *846search under such conditions is prohibited. Gill v. State, 134 Tex.Cr.R. 363, 115 S.W.2d 923; Burton v. State, 152 Tex.Cr.R. 444, 215 S.W.2d 180; Moore v. State, 107 Tex.Cr.R. 24, 294 S.W. 550; Giacona v. State, Tex.Cr.App., 298 S.W.2d 587.
Applying those rules here, it is apparent that if Art. 827a is a valid statute making it a violation of the speed laws of this state for one to operate a motor vehicle at an unreasonable and imprudent speed then a peace officer may arrest and search upon mere suspicion and belief, because the existence of an unlawful speed law depends, first, upon the supposition, opinion, idea, and belief of the peace officer, and, secondly, upon the supposition, opinion, idea, and belief of the peace officer that the facts constitute a violation of that statute.
If Art. 827a is void for indefiniteness, as I contend, it could not and would not furnish the medium for an arrest.
If Art. 827a be construed as a valid speed law regulating the speed of motor vehicles, then it is void because it authorizes an arrest and search upon mere suspicion and belief, in violation of our constitutional guarantees.
Does this conviction show a denial of due process?
The courts have often said that the meaning of due process is incapable of being expressed by a fixed or certain definition. One of the definitions of that term and one which I conceive to be entirely here sufficient is that a denial of due process has occurred when fundamental fairness necessary to the very concept of justice has not been observed. Newman v. State, 148 Tex. Cr.R. 645, 187 S.W.2d 559, and authorities there cited.
With that definition in mind, the question of a denial of due process is examined :
Here is, to my mind, a clear picture of what happened in this case and what could happen at any time under Art. 827a:
A policeman, a highway patrolman, a sheriff, or a constable, or any other peace officer observes an automobile being driven upon a public highway of this state. He decides that the automobile is being driven, under then existing conditions, at a greater rate of speed than is reasonable and prudent. Such conclusion is based upon his opinion and belief because of what he sees and observes. The actual rate of speed at which the automobile is traveling is not essential or controlling, but enters into the matter only in so far as it may be utilized by the officer in forming his opinion and belief. Because of that opinion and belief the officer concludes that Sec. 8, Subsection 1(a), Art. 827a, is being violated in his presence, so he proceeds to arrest the driver by ordering him to stop the automobile. By stopping the automobile, the driver is thereby arrested because he is under restraint by the officer. Art. 239, C.C.P. The officer then gives the driver a ticket showing that he is charged with having violated Art. 827a by driving at an unreasonable or imprudent speed. The driver is cited to appear in a designated court to answer that accusation. At the designated time the driver appears in court to answer the accusation. The officer testifies as to the operation of the automobile and the conditions existing at the time, and, upon that predicate, expresses the opinion that the driver was operating the automobile at an unreasonable and imprudent speed. The driver insists that, in his opinion, he was driving the automobile in a reasonable and prudent manner and that the officer was not justified in his opinion.
Under the testimony, the issue presented is whether the opinion of the officer showed an unlawful act on the part of the driver. In other words, is there a valid law in this state which says that the acts of the driver to which the officer testified were unlawful? The only way by which it could be said that such a law does exist would be to adopt, as the law, the opinion and idea of the officer.
*847But the judge or the jury trying the case do not agree- with the opinion of the officer. They, or either of them, are of the opinion that the facts testified to by the officer do not warrant his conclusion that the driver was operating the automobile at an unreasonable or imprudent speed. Under that opinion, an acquittal of the driver is required, not because he did not commit the acts to which the officer testified but because, in the opinion of the judge or the jury, there was no law which -made unlawful those acts.
Thus it is demonstrated that, under such procedure, the last individual or tribunal called upon or having authority to determine when a motor vehicle has been operated at an unreasonable or imprudent rate of speed makes that determination solely from his or its opinion, idea, and viewpoint, and not from any written law of this state.
So then we have in this state a statute which authorizes a conviction of one solely and alone upon the private opinion, idea, surmise, or supposition of one person who thereby not only announces what the law is but also determines that the facts upon which he bases that opinion show a violation of that law.
To guard against such a condition existing in this state, Art. 3 of our Penal Code was enacted. It reads as follows:
“Penalties must be affixed by written law. 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.”
Under that statute, this court has held that due process requires that a penal law must give reasonable notice as a predicate to punishment for a violation thereof. Ex parte Leslie, 87 Tex.Cr.R. 476, 223 S.W. 227.
I have no hesitancy in saying that if this conviction (in. the instant case) evidences that fundamental fairness necessary to the very concept of justice in all criminal cases, then due process of law no longer exists, for none of the elements necessary thereto is shown to exist.
It is my opinion that this conviction is in violation of every principal of due process.
By the passage of Art. 827a, the legislature showed that it no longer desired to exercise its constitutional power to regulate the rate of speed at which motor vehicles were to be operated over the highways of this state, because it thereby transferred to and conferred upon certain tribunals of this state that power and authority.
The only lawful means whereby the legislature could have been relieved of that power, however, was by a vote of the people of this state amending our Constitution. Unless and until the people place the legislative power to write laws in tribunals other than the legislature, that power and duty remain fixed in the legislature. The legislature could not have been relieved of that power by enacting Art. 827a.
If it was the purpose and intent of the legislature, in passing Art. 827a, to give to all peace officers in this state the unqualified and unlimited right to arrest a citizen of this state, and Search his person and possessions, for violating the speed laws,' it should have — in all fairness — so framed the statute that reasonable men would have had no difficulty in understanding and knowing the acts which were made unlawful.
Art. 827a does not meet those requirements. Rather it authorizes an arrest and search upon a void statute, and upon the mere conclusion, suspicion, and opinion of the arresting officer, in clear violation of our constitutional guarantees against searches and seizures.
*848There is a principle of law that is deep-seated in our jurisprudence: that of the doctrine of judicial review, which means that the power to enact laws lies exclusively with the legislative branch of our government, while the power to determine whether those laws are valid lies exclusively with the judicial branch of our government.
The legislature has no right to pass laws which violate constitutional mandates.
The courts have no right to approve or uphold a law that violates the Constitution.
The expediency, the purpose, or the reason for the enactment of laws rests exclusively with the legislature.
The judiciary has no power to sustain or defeat a law because it is expedient to do so or because of the benefits which might result from sustaining the legislation or the evils that might result from a destruction thereof.
In the performance of the duty here imposed upon me to determine the validity of Art. 827a, these principles are constantly in my mind.
Having reached the conclusion that Art. 827a is void and of no force and effect, I must so declare, in obedience to my oath of office as a judge.
While it may be expedient and a matter of considerable importance to this state that the speed of motor vehicles be limited and regulated, yet such regulation must come from the legislature by a valid law.
I realize that a dissenting opinion has no authoritative value. About the only persons who are benefited thereby are the writer and those who would be helped, if the views expressed herein were controlling.
I further realize that this is a case of no great concern when measured by the punishment inflicted, but, when measured by the questions presented and determined, it is a case of great moment and concern to the jurisprudence of this state and its citizenship, because certain guarantees and mandates contained in our Constitution are either effective or they no longer exist.
In writing this dissenting opinion it is my purpose to do what I can to preserve, protect, and defend the Constitution of this state and, in the furtherance of that purpose, I make no apology for expressing my views at length.