dissenting.
The majority opinion, written on motion for rehearing, renders it necessary for me to withdraw my original dissent and substitute the following therefor.
I agree with the majority that the injunction must be dissolved. This was my position in the original dissent. I do not agree that the Act under consideration is constitutional, and dissent to the holding by the majority that it is. This is a direct appeal as provided under Rule 499a, Texas Rules of Civil Procedure, and this Court should pass upon all constitutional questions whether raised or not, provided a holding thereon for any reason would render the Act void. See Tom Smith v. Bill Decker, Individually and Bill Decker in his official capacity as Sheriff of Dallas County, 158 Texas 416, 312 S.W. 2d 632. Direct Appeal, I think, was provided so that it could be determined by this court at the earliest time possible the constitutionality of the Act where it is under attack. Under my view, the Act is unconstitutional and void for the reasons hereinafter stated. If it is void, the proceeding is a nullity, and the parties should be so informed immediately.
In the case of Tom Smith et al v. Bill Decker, Individually and Bill Decker in his official capacity as Sheriff of Dallas County, Texas, supra, we held that when a law, duly enacted, is under attack as being unconstitutional, the law is presumed to be valid and doubts as to its constitutionality should always be resolved in favor of constitutionality. With this in mind, we held the Act involved was unconstitutional. We cannot presume the validity of the Act in the present case. The majority opinion quotes the caption as well as the body of the Act, and reference is here made thereto.
The provision of the Act under consideration appears in the last sentence of Article 4565g, Vernon’s Annotated Civil Statutes of Texas. That sentence reads:
“It shall be unlawful for any person, firm or corporation in this state to solicit patients or patronage for any individual licensed as a physician or optometrist, or for physicians or optometrists as professional groups, or to publish, cause or allow to be published any statement or advertisement concerning ophthalmic lenses, frames, eyeglasses, spectacles or parts thereof which is fraudulent, deceitful, misleading, or which in any manner whatsoever tends to create a misleading impression, includ*39ing statements or advertisements of bait, discount, premiums, price, gifts or any statements or advertisements of a similar nature, import or meaning.”
In holding the Act to be unconstitutional, the Attorney General of Texas in Opinion No. WW-299, dated November 18, 1957, summarized his views by saying:
“SUMMARY
“The portion of Article 4565g, Texas Civ. Stat. (Vernon, 1948), as amended, relating to the solicitation of patients, and to the publication of certain statements or advertisements is void since such provision was not contained in the original section and since the subject of this new substantive matter in the amendatory Act is not expressed in the title thereof.”
The portion of Article 4565g of the Revised Civil Statutes of Texas, supra, relating to the solicitation of patients and to the publication of certain statements or advertisements is invalid, because such provision of the amendatory Act was not contained in the original Act nor was it contained in the caption of the amendatory Act. By examining the body of the bill as amended by the Acts 1957, 55th Legislature, we find for the first time that the above quoted sentence has been added to Article 4565g, prohibiting solicitation of patients and advertising. This does not appear in the caption. The reading of the entire caption would lead members of the Legislature and the public generally to believe that the body of the Act would contain a section relating to “fraudulent, deceitful, or misleading statements,” but that is all it would reveal. There is nothing anywhere in the caption which would indicate that the body of the bill would make it unlawful for any person to solicit patients or patronage for a physician or optometrist. I think the variances between the caption of the bill and the bill itself are sufficiently grave to warrant striking down that portion of the Act under consideration. It is important that the members of the Legislature shall be able to ascertain from the caption what would be in the body of the bill. The same is true as to the general public, including representatives and officials of newspapers, radio, and television. A caption of a bill containing a provision prohibiting fraudulent advertising would no doubt be in accord with the wishes of such news media, but a caption containing the full provision of the last sentence of Article 4565g, supra, would have caused such representatives to take immediate steps to defeat the bill. This conclusion is equally applicable to the *40persons or firms directly involved in the suit. The caption is misleading and wholly insufficient to put the public on notice as to the contents of the bill. I know of no rule that makes a difference because of the length of the bill. I agree with the appellants-defendants’ statement in their motion for rehearing that the Act violates Article 3 of Section 35 of the Constitution of Texas. The Constitution has provided that the caption should state the contents of the bill in order to advise the public and the members of the Legislature of its contents. Failure to conform to the Constitution in enacting legislation renders the enacted law unconstitutional and void. See Texas-Louisiana Power Company v. City of Farmersville, Texas Comm. App., 67 S.W. 2d 235; Arnold v. Leonard, 114 Texas 535, 273 S.W. 799.
It will be noted that the caption refers to Articles 4565g, supra, and Article 4585d(l), Vernon’s Annotated Civil Statutes of Texas. The caption of Article 4565g, supra, did not make any reference to any part of the caption of Article 4565d(l), and that the portion of the caption referring to Article 4565d(l) provided that the statute when enacted would prohibit “fraudulent, deceitful or misleading statements concerning* ophthalmic lenses, eyeglasses, spectacles and other optical goods; and repealing all laws and parts of laws in conflict with this Act. * * * ” Thus, it is seen that Article 4565g as enacted goes by its terms far beyond the field to which its activities were restricted by the terms of the caption of said Article. The statute involved is an amendatory Act. The caption of the amendatory Act specifically describes certain provisions which are contained in the amended Article 4565g, supra. The Attorney General’s opinion, supra, points out the following pertinent facts:
“* * * caption does not merely state that Article 4565g is amended and then proceed to enumerate the provisions of the original Act. To the contrary, it specifically enumerates the provisions of the Act in its amended form. It does not contain any language which could give the reader of the caption an indication that the amendment contains a further provision relating to solicitation. The portion of the amended Act relating to the solicitation of patients, and to publication of certain statements and advertisements, is a new law in the sense that no similar provision was contained in Article 4565g prior to the amendment. It is obvious from the reading of the statute that Article 4565g, prior to the amendment, and the first portion thereof, subsequent to the amendment, relates to a limitation placed upon ophthalmic dispensers from the performance of certain acts *41relating to preparation, filling, duplicating, compounding or adapting prescriptions, or dispensing lenses, without specific direction of a prescription written and signed by a licensed physician or optometrist. The latter portion of the amended Act relating to the solicitation of patients and publication of certain statements or advertisements, though relating to the field of optemetry, nevertheless is a completely separate and unrelated prohibition from that contained in the first portion of the Act and which is described in the caption thereof.”
I adopt the opinion of the Attorney General. It reads:
“It is well settled that the introduction of the ‘new substantive matter in the amendatory Act not germane or pertinent to that contained in the original section’ characterizes the amendatory Act as independent legislation upon a matter not expressed in the title of the Act and that the portion of the amendatory Act which contains the new substantive provision is rendered void. Katz v. State, 122 Texas Crim. Rep. 231, 54 S.W. 2d 130. With this rule in mind, we now look back to the caption of the amendatory Act and see that it is stated therein that such Act amends Article 4565g in certain particular respects, without mentioning the addition of the new solicitation and publication provision. The rule as stated in the Katz case was followed in Walker v. State, 134 Texas Crim. Rep. 500, 116 S.W. 2d 1076, and in Board of Water Engineers of the State of Texas v. City of San Antonio, 155 Texas 111, 283 S.W. 2d 722.
“We conclude that the provisions in the amended Act relating to solicitation and publication of certain statements or advertisements is new substantive matter which has been added in the amended statute and which is not sufficiently germane or pertinent to that contained in the original Act to abrogate the necessity of specifying the addition in the caption of the amendatory legislation. It is our view, therefore, that the portion of Article 4565g, Texas Civ. Stat. (Vernon, 1948), as amended, which relates to the solicitation of patients and to the publication of certain statements or advertisements concerning ophthalmic lenses, frames, eye-glasses, spectacles or parts thereof, is void. Since we have answered your second question in the affirmative, it is unnecessary to consider the first question which you submitted.”
I respectfully disagree with the majority conclusion which rejects the case of Arnold v. Leonard, supra, as authority supporting the contention of appellants. The Arnold case is authori*42ty if the argument advanced in this dissent is correct. The majority attempts to take the present case out from under the rule announced in Arnold v. Leonard by stating that the caption is full enough to assert the provision in question in the body of the Act. Of course, this is the vital point of difference between the majority and the dissent. It is my position that the caption is wholly insufficient to apprise anyone of the objectionable features contained in the body of the Act. As before stated, the caption is misleading and confusing. For example, the body of Article 4565g, includes language related to the Caption of Article 4565d(l) ; and Article 4565d(l) includes language related to the caption of Article 4565g. Therefore, the following holding in the Arnold v. Leonard case is appropriate in the instant case:
“This language not only gives no notice of an intention to change the status of certain property from community property to the wife’s separate property, but completely disguises any such intention. A caption concealing the true purpose of a statute, and stating an altogether distinct and foreign purpose, is necessarily deceptive, and cannot be sustained as complying with Section 35 of Article 3 of the Constitution.”
This court should not only dissolve the temporary injunction, but should go further and hold the Act unconstitutional and void in so far as it affects this case, and order the case dismissed.
I concur in part and dissent in part.
Opinion delivered June 25, 1958.
Rehearing overruled July 23, 1958.