When the original opinion was handed down I disagreed for two reasons, first, because of the insufficiency of the indictment, and, second, because the Act of the Thirty-first Legislature under which the prosecution was brought was not and can not be effective in local option territory then existing, nor can it be made operative in that territory until the vote of the people of such territory have declared their will in favor of the local option law subsequent to the passage of the law under discussion. In other words, that the Act of the Legislature under discussion can not become operative in local option localities where the law was then existing. It can only apply where the people have voted upon that law favorably after the passage of the Act. An inspection of the Act in question makes it apparent that it was passed to prohibit the business of selling intoxicating liquors only in local option territory. This is manifest from a reading of the first section of the Act, and it *Page 384 is further manifest that under the first section it is only applicable to local option territory. It can operate in no other portion of the State. Second, it is equally certain that theremust be a business carried on or an occupation followed ofselling intoxicating liquors in such local option territory in order to constitute a violation of this Act of the Legislature. It is unnecessary to notice section 2 of the Act as it only relates to matters of evidence. Section 3 provides that in order to constitute engaging in or pursuing the occupation or business of selling intoxicating liquors within the meaning of this Act, it shall be necessary for the State to prove in all prosecutions hereunder that defendant made at least two sales of intoxicating liquors within three years next preceding the filing of the indictment. Under this section it is essential, first, that the business or occupation be carried on or pursued, and second, that the specified number of sales shall occur in order to authorize a prosecution. I, therefore, conclude it was and is necessary to allege both of these essential statutory ingredients else the indictment would not charge the offense. It has always been held absolutely essential in charging an offense in this State that the indictment shall contain every statutory ingredient of the offense. This matter was thoroughly adjudicated in Hewitt v. State, 25 Tex. 722, in an opinion by Judge Roberts, and has been the settled rule from that time till the present. The question was again brought under review in Huntsman v. State, 12 Texas Crim. App., 619, under an Act wherein the Legislature sought to prescribe forms, some of which were contrary to the statutory definition of the offense under which the form was prescribed. The doctrine of the Hewitt case was again vigorously asserted and maintained. I do not care to elaborate those matters. I could not add anything to what was said by Judge Roberts in the one case, and Judge Hurt in the other. We also have a statute which requires that everything necessary to be proved must be alleged in the indictment. That means that every phase of the statutory offense as therein prescribed must be alleged in the indictment, as it is necessary to prove all of these matters as prerequisite to a conviction.
Upon a review of the case in motion for rehearing Judge McCord revised his former opinion in this respect, and held the indictment vicious. This view of the question was also taken in Mizell v. State, decided the same day. I, therefore, concur with Judge McCord in holding the indictment vicious. It being necessary to prove that the business of selling was pursued or carried on and that at least two sales were made as prerequisite to conviction, it was, therefore, necessary to allege both phases of the statute in the indictment. The fact that the business was carried on and that at least two sales occurred within the specified three years are prerequisite allegations to the validity of the indictment, and it is equally necessary that the names of the purchasers be stated. The reasons for these views are obvious. It has been so held in all cases of violations of the local option law in well considered opinions. This Act is only a penal one prescribing *Page 385 a punishment for selling in violation of the local option law. Dixon v. State, 21 Texas Crim. App., 517; Martin v. State,31 Tex. Crim. 27; Dreschel v. State, 35 Tex. Crim. 577, 34 S.W. Rep., 932. As this was but another manner of violating the local option law by selling, this matter of sale is controlled by the same rule of pleading in regard to sales as if there was but one sale and the allegations in the indictment in regard to this matter are governed by the same rule of pleading. The only difference in the two violations of the law in regard to the fact or act of selling is that under one Act the State is only required to prove one sale, whereas in the other it must prove two. I, therefore, concur with Judge McCord in holding the indictment vicious.
I can not, however, concur with my brethren in their holding that the Act of the Thirty-first Legislature, the one under discussion and under which this prosecution was brought, is effective in local option territory where the law was in existence at the time of the passage of the Act. My view of the law is that in order to put this law into operation there must be another local option election held in the territory, that the Legislature has no authority to put this law into operation in such territory, and that it can only be done by force and effect of a vote of the people of the given territory. To my mind it is clearly beyond legislative power to place in operation any law or punishment in local option territory, but that can only be done by vote of the people. Taken in its real and only intent and purpose, this Act was passed to punish the sale of intoxicating liquors in local option territory. It applies nowhere else in this State and had no other purpose, and it can accomplish no other end. The fact that it was enacted to punish selling in a certain way does in no manner change or modify this clear and inevitable conclusion. This the statute itself makes obvious when it declares there must be at least two sales in the specified time within the local option territory to authorize a prosecution and conviction. It is self-evident from the reading of the statute itself that there can be no possible conviction until there has been at least two sales within three years. This phase of the law can not be construed away. It is one of the essential requisites of the law, one of its principal ingredients, and if that phase of the law is construed away, the statute falls and there is no offense. This statute was evidently enacted in order to enhance the punishment for this peculiar or particular manner of selling intoxicating liquors in a local option territory in violation of the law. This Act must depend for its vitality upon the majority vote of the given territory, for until the local option law is placed in effect by a vote of the people this Act can not become operative in that territory. When that law has been defeated by a vote of the people, this Act, as a matter of necessity, would pass out of existence into "innoxious desuetude" with all other laws dependent upon the vitality or existence of the local option law. In such case *Page 386 this Act would become nonenforcible, and it would lie dormant until the local option law has again been put into operation by another vote of the people. This Act was not in existence at the time the people voted on the local option law in the territory where this case arose. It has been held in Texas wherever this question has arisen, that the legislative Act prescribing punishment for violations of the local option law can not go into effect in a territory where the law was then in existence without another vote of the people, and that the Legislature itself was powerless to put the law into operation or change the punishment or add a new punishment to be made operative otherwise than by a vote of the people. This proposition and rule was thoroughly adjudicated in Dawson v. State, 25 Texas Crim. App., 670, and has been followed in all subsequent cases down to and including the Lewis case, decided at the present term of this court. I feel perfectly safe and all confidence in being correct in resting my dissent in this case upon the very able and exhaustive opinion in the Lewis case and cited authorities, written by my Brother Ramsey, and feel that I would scarcely be justified in seeking to fortify his reasoning in that case, and that I would be entering upon a doubtful undertaking in attempting so to do. The Lewis case is correct, and the same reasons which apply in that case apply with equal force here. The law construed in the Lewis case only required one sale in the prohibited territory to afford the basis of punishment. Here, under this Act, two sales are required. Both laws operate only by virtue of a majority vote in the specified territory putting local option into existence. The selling of intoxicants is prerequisite under both laws, and the same reason that holds the law inoperative in such territory in the Lewis case should apply with at least equal cogency under the terms of this statute, for the sale in both instances is a sine qua non to the prosecution. The punishment in neither case was voted on by the people and neither should be held operative in the territory until they have so voted. There can be no difference in regard to the vitality of the law or its position with reference to local option territory in one instance that is not equally applicable in the other, and the mere fact that one is an amended statute and the other a new one, would not change this rule. If the Legislature had the authority to make a new statute and put it into operation without being voted upon by the people, it would have the same authority to put into operation the amended statute. One would be as new in the same territory as would the other, for both prescribe a punishment for selling intoxicants that was not in existence at the time the people voted the law. I do not care to further pursue or elaborate this matter. The reasoning in the Lewis case is entirely satisfactory, and what I have said would seem to be unnecessary and a work of supererogation, in view of what was said and held in the Lewis case.
If the Legislature can put into effect the local option law without a vote of the people to be affected thereby, then by the same authority *Page 387 and reasoning that body can repeal the law without the consent of the same people. This would lead to the destruction and direct subversion of the provisions of article 16, section 20, of the Constitution, as well as the local option law itself. If the Legislature could do this, then that body could take away the reserved rights of the people, as they placed the same in the Constitution, and assume this authority in the face of the plain mandatory provisions of that Constitution and place it where the people did not place it. This would be an usurpation of power on the part of the Legislature.
There is one other phase of the majority opinion that I desire to notice. The majority opinion is written apparently, if not really, upon the theory that this Act was attacked as being unconstitutional. I do not so understand the question presented. The only or main question suggested is that this law could not be put into operation in the local option territory without an endorsement or vote of the people. I do not understand that it is contended that the Legislature did not have authority to pass such a law subject to ratification or endorsement by the people. Much of the majority opinion is devoted to the idea that the law was attacked because of its unconstitutionality. The Ezzell case in the 29 Texas Crim. App., 521, seems to be cited in support of some of the propositions along this line. The Ezzell case was not discussing the question involved here. An inspection of that case will show that the question there involved was that a punishment could be had for an infraction of the law when that infraction occurred while the law was in vogue, but the trial and conviction occurred after the law was repealed by a vote of the people. Under the early decisions it was held this could not be done, but the Legislature to meet this changed the law so that the abrogation of the law in the given territory would not exonerate from punishment a violation of that law committed while it was operative. The local option law had been amended by the Legislature on March 30, 1887, and as amended had been voted into operation by the voters of Wilson County, in December, 1888. The amendment of 1887 provided two matters not theretofore included in said law, first, that the repeal of the law should not exempt from punishment any person who had offended against the provisions of that law while it was in force, and, second, that the purchasers of intoxicants in local option territory should not be accomplices. See White's Annotated Penal Code, article 407. Neither of the above provisions were in existence prior to the Act of March 30, 1887. The law as amended was adopted by the people in Wilson County subsequent to the amendment, and, therefore, became the governing rule of action until repealed by the same vote. This repeal by a vote in that county occurred in March, 1891. The adoption in 1888 of the amendment of 1887 by the people in that county put the amended law into operation. It was not put into operation nor sought to have been so done by the Act of the Legislature. It was, therefore, held in the Ezzell case that the repeal of the law in 1891 by a vote of the *Page 388 people of that county did not exempt Ezzell from punishment for acts committed by him while the law was in effect. Had the facts in the case under consideration shown that the people had voted on local option since the enactment of the statute by the Thirty-first Legislature, the Ezzell case might be in point had the question been in that case decided. The Legislature has the authority, and it is the duty of that body to enact suitable and sufficient laws to carry out the purposes of article 16, section 20, of the Constitution, but that body can not put such penal laws into operation. This was reserved by the people for their own consideration at the polls, and it takes a vote of the people of the designated territories to give effect to this law. In the Ezzell case the people had so done, but in the case under consideration this had not occurred. The Ezzell case is not, therefore, authority for the position of the majority opinion in this case on that question. The constitutionality of the Act in question is vitally different from the question under discussion and consideration. If an Act be unconstitutional, it is void and beyond legislative authority to enact, and, therefore, could not become operative either by legislative enactment or by a vote of the people. If the Act is within constitutional authority, then the question is one of putting that Act into operation in the designated territory. The latter question is the one involved in this case and not the former. It has always been held that the only way to put into operation local option laws in Texas is by a direct vote of the people to be affected by the operation of that law. They alone can put it into effect, and they alone can repeal its operation. All the cases can be cited in support of this proposition, but it is deemed unnecessary to collate them. The question here involved did not arise and could not have arisen under the facts of the Ezzell case. The question was not suggested in that case either in the record or in the opinion, and was not referred to or discussed. The question at issue here had theretofore arisen in the Dawson case, supra, and had been settled adversely to the majority opinion. The decision in the Dawson case, of course, was known to the profession long prior to the decision in the Ezzell case. The facts in the Ezzell case excluded it from the operation of the rule laid down in the Dawson case. When the law went into operation in Wilson County in 1888, the amendment of 1887 was at the same time adopted and put into operation, but this was done by a direct vote of the voters of that county. These voters had that authority, but the Legislature did not.
The Schwulst case in the 52 Tex.Crim. Rep., is also cited to sustain the proposition that the blind tiger Act was constitutional. If this law had been attacked as being unconstitutional, the Schwulst case might have been applicable. The question here at issue did not arise in the Schwulst case, nor did it arise in the prior case discussed in the opinion of Segars v. State, 35 Tex.Crim. Rep.. An inspection of the law and the Segars case will demonstrate that it could not have arisen. The blind tiger Act was passed in 1887. The Segars *Page 389 case was not decided until May, 1895. The statement of facts in the original record in the Segars case shows the law was put into operation in Brown County, where the conviction occurred, in 1893, and that appellant was charged with a violation of the law as having been committed on the 6th of September, 1894. Therefore, the question here suggested for revision could not have arisen, because the blind tiger Act was voted into existence by virtue of the election held in 1893, years after the blind tiger law was enacted.
I deem it unnecessary to discuss the question of constitutional law in regard to this matter further than as stated, that is, under article 16, section 20, of the Constitution, the Legislature is powerless to create a penalty and put it into operation in a local option territory; that the law must be made operative only by a vote of the people, and that no punishment or penal law can be enforced for violating the local option law in that territory until it has been voted upon by the people of the territory. I, therefore, respectfully dissent from the majority opinion wherein it is held that the Legislature had the authority to authorize the punishment for engaging in the sale of intoxicating liquors in local option territory by virtue of the Act under discussion. The Legislature could not do this.