The State files a motion for rehearing, alleging the opinion heretofore rendered is erroneous, first, because "it is not shown beyond a reasonable doubt that the Act is unconstitutional; the court should have held it valid; second, that Judge Hurt's opinion in the Bell case is not dicta, and the court should have followed it, and held the Act valid; third, that the court should have held the Act valid under the law of military necessity; fourth, the court erred in holding the local option section of the Constitution a limitation on the police power of the State to enact the Statewide Act, and, fifth, the court erred in holding the local option section of the Constitution a limitation on the police power, and because the opinion of the court violates section 28, article 1, of the Constitution."
These five grounds embody but one proposition, and in it the above five subdivisions center and about it revolve; that is, the police power is superior to constitutional provisions, and by its exercise the Legislature is authorized to suspend the Constitution.
The writer recognizes the proposition as being in a general way correctly stated, that if there is a reasonable doubt of the constitutionality of the Act it should be upheld. This has been decided often, and the authorities are not necessary to be cited. But that is based upon the further proposition that there may be a question of the power of the Legislature to provide under its police powers regulations or enact legislation carrying out the constitutional power invested in the Legislature. *Page 305 There can be found no case, so far as the writer has been able to ascertain, which lays down the proposition that the police power is superior to the constitutional provisions, or can suspend the Constitution when the question arises on a conflict of superior authority. The police power is always subordinate to constitutional authority. The police power, in a general way, pertains to the legislative department, and is derived from the Constitution, and delegated to the legislative branch of the government by the provisions of the Constitution. The Legislature could not exist except by the provisions of the Constitution. Police power inheres in the Legislature by reason of this granted power. The people framing their Constitution did not delegate authority to the Legislature, or any department of government, to override or abrogate any provision of the Constitution. The power of the courts, of the executive department, and the Legislature finds authority only in the provisions of the Constitution. They are not outside of nor superior to those provisions, and can not be. They exist by reason of the will of the people as expressed in the Constitution.
The contention of the Attorney General, therefore, is that the provisions of the Constitution are not limitations upon the police power to be exercised by the Legislature. This contention is not correct, and can not be sustained. The police power is never a limitation upon the Constitution, but the Constitution is a limitation upon the police power. This ought to be a self-evident proposition without discussion or citation of authority, and so fixed by the provisions of that instrument. A few references to it ought to settle this without citing adjudicated cases.
Article 1, section 2, of the Constitution, the Bill of Rights, provides that: "All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient." It can not be contended in the fact of this language that the Legislature, by reason of the police power, can suspend any clause of the Constitution, for the Legislature only acts under delegated authority, its grant of power being found in the Constitution.
In a general way constitutional provisions are considered as limitations upon legislative power as applied to State governments. This proposition is to be considered from the standpoint of conferred authority, delegation of power. Such limitations can not be used to destroy constitutional provisions, but can only be correctly used for the purpose of carrying into effect those provisions. Legislative power was not given to destroy but to uphold ordained governments. The Constitution was made for and by our citizenship for their use and benefit. Citizenship is not made for the Constitution, but the Constitution is made for the citizenshop. Nor was the citizenship and the Constitution *Page 306 made for the Legislature, but the Legislature was created to carry into effect the Constitution. The police power is not a limitation upon the Constitution, but the Constitution is a limitation upon police power. The police power is a result of the Constitution to be operated by the Legislature to carry it into execution. These provisions can not be used for suspending, changing or altering the Constitution.
There are many sections in the Constitution directly prohibitive of legislative power or police regulation. Some of these may be found in article 3, which creates the legislative department. It is declared in section 53 of that article that the Legislature shall not grant or authorize the matters therein specified. In section 54 of the same article inhibitions are set out to the effect that the Legislature shall have no power to release, extinguish, etc., any indebtedness, liability or obligation of any incorporation or individual to the State. Section 55 of said article embraces numerous inhibitions against legislative authority, positive and direct in language. These are not necessary here to enumerate. It is not within the power, therefore, of the Legislature to suspend any of the clauses above mentioned. Article 1, section 2, inhibits the exercise of power which would abolish, alter or reform the government, and expressly provides this only can be done by the people. It is directly asserted in said section that this is an "inalienable right" of the people, and all powers of government are specially interdicted from usurping or exercising these powers. It specially excepts from the power of the people themselves and provides that a republican form of government shall not be destroyed, but that it shall remain unrepealable by any power, State or Federal. This the States pledge each other by binding obligations in the Federal government, and bound that government to maintain and guarantee such republican form of government. The contention of the Attorney General, therefore, from this viewpoint can not be sustained, for if sustained it would confer upon the Legislature power to destroy even this form of government. This the people can not do themselves. Legislative bodies under American institutions do not and can not act by original or inherent power. Such authority has not been conferred. Such authority as that body may exercise is but one of delegation by the people through the Constitution. Assumption of original or inherent power by the Legislature would result in the higher and controlling authority over the people through their Constitution, and would be destructive of every principle of self-governing democracy. It was Edmund Burke, the great English orator, who said that: "This change from an immediate state of procuration and delegation to a course of acting as from original power is the way in which all the popular magistracies have been perverted from their purposes." To avoid this result and to effect the purposes of our people as set out in article 1, section 2, of the Bill of Rights, article 17 was placed in the Constitution as the only means by which that instrument may be changed, altered or reformed, and limits that authority to the action of the people directly. This excludes the idea of alteration or changing *Page 307 the Constitution, or the suspension of its provisions in any other mode or manner. The Legislature may suspend laws, but such power is especially limited for that purpose. This is to be found in article 1, section 28, of the Bill of Rights. The power to suspend laws does not convey the idea of suspension of the Constitution, or its alteration or abrogation. This is the "inalienable right" of the people. It will be noticed that our government, as before stated, is republican in form and in its nature. It is a representative democracy. It is based upon the theory that autocracy, militarism and social democracy shall find no lodgment with us. They are excluded as forms of government and we limit our government to republican form as it was instituted and guaranteed by State and Federal Constitutions. A complete refutation to the position of the Attorney General that the Legislature can suspend the Constitution or any of its provisions, is found and emphasized in addition to section 2, article 1, and article 17 already cited, in the provisions of section 29 of article 1, which ordains that: "To guard against transgressions of the high powers herein delegated, we declare that everything in this `Bill of Rights' is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void."This absolutely prohibits any action on the part of the Legislature, or other departments of the government, to do any act or pass any law which may conflict with either the "Billof Rights or the following provisions" of the Constitution. It emphatically declares that all such action or laws shall be void. This section reiterates and emphasizes that the power to the different departments of the government is only one of delegation. It precludes the idea of original power in any department of the government. It denounces complete invalidity of all acts which may conflict with any provision of the Constitution. All provisions of the Constitution are by the terms of this section excepted out of the general powers of thegovernment, and clothed with inviolable sanctity, and shall remain inviolate, not to be infringed by any department of government. They are more than mandatory and comprehensive in declaring inhibitions. The rule of legislative or official omnipotence finds no standing in American government or institutions. It may be that the British Parliament was clothed with authority to make and unmake British constitutions, but this idea does not obtain in America, or under American form of government. In the creation and erection of American constitutional government, State and Federal, the doctrine of omnipotence as applied to British Parliament was excluded, and in its place was substituted the omnipotent or inherent power of the people to make, alter or change their government. It was said by one of the great statesmen of Pennsylvania in the convention ratifying the Federal Constitution:
"To control the power and conduct of the Legislatures by an overruling constitution was an improvement in the science and practice of government reserved to the American States. Perhaps some politician *Page 308 who has not considered with sufficient accuracy our political systems would answer that in our governments the supreme power was vested in the constitutions. This opinion approached the subject nearer to the truth, but does not reach it. The truth is, that in our governments the supreme, absolute and uncontrollable power remains in the people. As our constitutions are superior to our Legislatures, so the people are superior to our constitutions. Indeed, the superiority in this last instance is much greater for the people possess over constitutions control in act, as well as right. The consequence is that the people may change the constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them."
In fact, the supreme power in our people may be called the panacea in politics and in the science of free government. While it is true that some politicians may have contended that the sovereignty of the government is in the Constitution and not in the people, yet until very recently it has not been contended that these politicians may go to the extent of contending that legislative authority can overturn the sovereign will of the people. These questions have come for review in courts of Texas on various occasions. By numerous decisions the courts of last resort in this State have declared that the Legislature has no authority to make any rule or enact any legislation in contravention of the plain provisions of the Bill of Rights. Pratt v. State, 53 Tex.Crim. Rep.; Gold v. Campbell, 54 Texas Civ. App. 269[54 Tex. Civ. App. 269], 117 S.W. Rep., 463; Ex parte Farnsworth, 61 Tex.Crim. Rep., 135 S.W. Rep., 535; Kemper v. State, 63 Tex.Crim. Rep., 138 S.W. Rep., 1025. This proposition was asserted and laid down in Snyder v. Baird, etc., 102 Tex. 4. The language of that decision is emphatic to the effect that the Legislature has no authority to annul any clause of the Constitution. In State v. Moore, 57 Tex. 307, it was held that the Legislature can not withdraw any power from the hands of those in which the Constitution has placed it unless the Constitution expressly so authorizes. It has also been held that the Constitution is the superior and supreme law, and laws or acts of the legislative body in conflict with it, or its provisions are void. Williams v. Taylor, 83 Tex. 667 [83 Tex. 667]; Higgins v. Rinker, 47 Tex. 385 [47 Tex. 385]; Galveston Ry. Co. v. Gross, 47 Tex. 428 [47 Tex. 428]; Huntsman v. State, 12 Texas Crim. App., 619. It is also the declared doctrine in Texas, and has been so held by the courts, that the Constitution may be expanded to give effect to its provisions, but this can not be done to infringe or defeat its purpose or provisions. Harris v. State, 7 Texas Crim. App., 212. All provisions of the Constitution are mandatory, and necessarily so. They are not directory. For a collation of a great number of cases so holding see Harris' Ann. Const., at page 219, note 54. It is also held in State v. Durst, 7 Tex. 74, that the provisions of the Constitution are mandatory upon the courts. It has been further held that any decision of the courts holding contrary to the Constitution of this State can have no validity. It is the exercise *Page 309 of unauthorized and unwarranted power on the part of the court. Chase v. Swayne, 88 Tex. 218.
Nor is there any force in the contention that because article 10, section 20, is not self-executing, therefore the Legislature may disregard, set it aside or overrule it. The proposition has been announced and sustained by the decisions and jurisprudence of Texas that any and all provisions of the Constitution are self-executing to the extent that anything done in conflict with such provisions, or in violation of such provisions, are null and void. Hemphill v. Watson, 60 Tex. 679. See also Const., art. 1, sec. 29.
One of the most far-reaching and dangerous propositions asserted by the Attorney General is that the Legislature may suspend the Constitution, or any of its provisions, on account of military necessities. This might find defensive grounds in the military autocracy of Germany, but not in democratic America. The Texas Legislature has no authority to declare war or make treaties. Such power is delegated alone to the Federal government by the States of the Union. If Texas has not the authority to declare war, it would seem to necessarily follow that she could not invoke the police power of the State to enact war measures in conflict with the Constitution. That instrument declares in section 24 of the Bill of Rights that military shall always be subordinate to the civil authority. To sustain the contention of the Attorney General would mean the abolition of the republican form of government and the substitution in its place of a military government. This is beyond comprehension or contemplation in Texas. It is directly foreign to every principle of our government, and the very mention of it ought to be sufficient to show the falsity of the contention. One of the leading features of Texas independence may be quoted thus: "In this expectation they have been cruelly disappointed, inasmuch as the Mexican nation has acquiesced to the late changes made in the government by General Antonio Lopez de Santa Anna, who, having overturned the Constitution of his country, now offers, as the cruel alternative, either to abandon our homes, acquired by so many privations, or submit to the most intolerable of all tyranny, the combined despotism of the sword and the priesthood." This was one of the basic reasons why the Declaration of Texas Independence was written. It is to be hoped that the priesthood of Texas will never lend their influence to the intolerable doctrine of military necessity as a means of overruling our Constitution, or to carry out any particular theory or political contention. Texas patriotism discarded in the Declaration of Independence the idea of military authority, and engaged in a war to the successful extermination of that thought in the battle of San Jacinto. This gave to the world a new republic with its emblem of authority — the Lone Star flag. It is a singular contention, novel, fallacious and destructive, that the Legislature of Texas, under delegated authority, can overturn the Constitution and inject into our government the doctrine of *Page 310 military necessity as a means of overcoming and destroying the republican form of government.
Another contention of the Attorney General is the opinion in the Bell case, 28 Texas Crim. App., 96, is authority for his proposition that the Legislature may suspend the constitutional provisions, article 16, section 20. That opinion was written by Judge Hurt. The right of the people to dominate the government in all of its branches, including the police power, found no stronger advocate in public life and on the bench than Judge Hurt. Such imputation is foreign to everything Judge Hurt ever wrote in his judicial life. He never used his great powers or lent them to the doctrine of subversion of our government by delegated authority. His whole judicial life was directly exercised to prevent such catastrophe. The Bell case, supra, is not authority for the proposition that Judge Hurt held the police power of the State could be exercised in opposition to section 20, of article 16. The question at issue in that case was simply the power of the Legislature to dominate and control, and even if necessary abrogate the selling of intoxicants in saloons. That section 20, article 16, did not abolish the police power of the State in this respect would hardly be questioned, but it will be noticed in this connection that the police power of the State could not operate on saloons in local option territory. The very statement of the fact that local option was in effect is irrevocable evidence of the fact that saloons did not exist in such territory. In fact, they could not exist because the local option law prohibits the sale of intoxicants within the specified boundaries where the law is operative. There ought not to be any conflict between the local option clause of the Constitution and the police power properly applied. The police power is subordinate to the provisions of that section of the Constitution, and can not exist in said territory so far as controlling the sale of intoxicants. The people reserved that to themselves and segregated it from the legislative department. Judge Brown, in the case of State v. Texas Brewing Co., held that where the people acted upon this local option law and put it into operation within the given territory, it became as paramount as the Constitution itself and superior to legislative authority. Judge Brown in so stating was but following the unbroken line of decisions in Texas since the opinion in the Robertson case, 5 Texas Crim. App., 155. The opinion in the Robertson case lays down the proposition that where local option is adopted it is superior to all laws that may come in conflict with it, and the decisions from that day until the present have with unanimity held to the same doctrine. See Ex parte Bell, 24 Texas Crim. App., 428; Ex parte Sundstrom, 25 Texas Crim. App., at page 159; Dawson v. State, 25 Texas Crim. App., 670; Lawhon v. State, 26 Texas Crim. App., 101, and Robinson v. State, 26 Texas Crim. App., 82. The opinions in the latter two cases were written by Judge Hurt. He also concurred fully in the proposition laid down in Ex parte Bell, Ex parte Sundstrom, and Dawson v. State, cited supra. These questions are practically the same and run without conflict through all the decisions *Page 311 and jurisprudence of Texas. Judge White, in Ex parte Bell, said: "Nor do we propose to discuss the scope, extent and purpose of `local option,' as provided in our Constitution and laws, nor how far it is to be considered exclusive as a prohibitory law in our State. In fact, we do not propose to discuss generally prohibitory legislation at all; because, in our view of the case, prohibition in one of its aspects alone is involved in the matters submitted, and that is the right and power of the Legislature to prohibit `drinking saloons' or saloons for the purpose of carrying on the liquor traffic. Upon the question of this power in the Legislature we have found no difference of opinion, either in the decisions of courts or the standard authorities upon the subject. All agree that the Legislature has authority absolutely to prohibit them." In Bell v. State, 28 Texas Crim. App., 96, this was the question at issue: the domination of the saloon by the police power. The question of the right of the Legislature to annul or suspend section 20, article 16, was not discussed by the court in any of those opinions.
From the Sundstrom case, supra, this quotation is made: "The theory of appellant is that the said article 16, section 20, and the legislation thereunder, should control the question of the liquor traffic of the State to the exclusion of all legislative regulation of said traffic except under and by virtue of said article and section. This question was before this court in Ex parte Bell, 24 Texas Crim. App., 428, and was there decided adversely to the position assumed. That case is directly in point. Bell brought his writ of habeas corpus to test the constitutionality of the Act of 1887 (General Laws, p. 58), amendatory of former Acts of the Legislature. He admitted non-compliance with that law and all necessary facts, and hinged his case on the constitutionality of the law, from the standpoint that said Act was prohibited by article 16, section 20, of the State Constitution.
"The court held the position untenable, refused the writ and remanded the relator to custody. This, as I view it, settles the question and holds that the said article and section do not limit the power of the Legislature on any question in which the liquor traffic may be represented, save and except to absolutely prohibit its sale or where the local option happens to be in force. (Ex parte Bell, 24 Texas Crim. App., 428.) This same view has always been held by this court. The local option law, where it is in force, operates as a sort of supersedeas upon the general laws of the State regulating the sale of liquor in the given territory, but as soon as the local option law is repealed, the State laws operate at once." Judge Hurt concurred in this opinion as stating the correct doctrine. He wrote the opinion in Ex parte Fields, 39 Tex.Crim. Rep.. From page 54 this quotation is made from that opinion: "Anti-prohibition is in force in every county, justice precinct, town, etc., in this State, unless voted on at an election held for that purpose."
It would be useless to follow these decisions. The Dawson, Lawhon, and Robinson cases, supra, are directly in line to the same effect, and discuss the same principle and announce the superiority of the local *Page 312 option law over the Acts of the Legislature when once placed into operation. This question came in full review in the Lewis case, 58 Tex.Crim. Rep., in which Judge Ramsey wrote a masterful opinion reviewing the subject and the authorities, and the doctrine was again asserted and maintained, and so far as the writer is aware this doctrine has not been questioned except it be in the present case. The result of this jurisprudence and all these cases is that the Legislature is powerless to interfere with local option after it has been once put into operation by a vote of the people. It is sacred from the touch of legislative action, and, as Judge Brown says, it becomes as paramount as if it was a part of the Constitution itself.
Another case written by Judge Hurt might be casually mentioned: Huntsman v. State, 12 Texas Crim. App., 619. This was one of the most masterful opinions ever written by that great judge. The case was written especially with one point in view, and that was to demonstrate the superiority of the Constitution over legislative action. Anyone who will read that opinion would have his mind disabused of any thought connected with the life of Judge Hurt that he stood for the abolition, suspension or alteration of our Constitution by any authority except by the people themselves, especially emphasizing the fact that this could not be done by legislative action. He was writing that opinion with reference to what is known as the "common sense indictment bill." See also Powell v. State, 17 Texas Crim. App., 345, where Judge Hurt discussed the question of jeopardy.
I have said this much in justice to the memory of Judge Hurt, and because of my long personal and judicial intimacy with him. For twelve years he and I were intimately associated together in connection with the Court of Criminal Appeals in public life, and now for the first time in this case it is urged that Judge Hurt favored the doctrine of a suspension or overturning of the Constitution, or any of its provisions, by the Legislature. This is an unjust criticism and an imputation not warranted by his life on the bench. I regret the contention has been made, or that I should feel called upon to defend the judicial life and character of that great judge.
I do not care to discuss particularly the questions decided in the original opinion by Judge Morrow. His reasoning is irrefutable on the question of the superiority of the Constitution over legislative action. The legal mind ought not to question for a moment the fact that the Legislature is inhibited from suspending constitutional provisions. The consequences of such a conclusion would be appalling, for if the Legislature can suspend one clause of the Constitution, it can suspend any or all of such provisions, and even the Constitution in its entirety. This would empower that body to suspend the right of trial by jury, and overturn that clause which inhibits the suspension of the writ of habeas corpus. It would make the military superior to the civil authority; it would overturn section 2 of article 1, destroy article 17, abolish article 1, section 29, and make the Legislature autocratically supreme. *Page 313 It would invest Texas with militarism to the overturning of the civil authority, and would do away with the power of the people to make a constitutional form of government. It would seem strange that it should be seriously contended in the courts that the military should dominate the civil. The supremacy of militarism has recently plunged the world in the greatest war in its history. In the vortex of that mighty struggle the United States was drawn with its untold resources of men and means. We have just succeeded, as we understand the current history of today, in crushing militarism in Europe. A success there of militarism would have endangered our American institutions as we hold them and it was anticipated would subject us to the ultimate power of military Germany. It is a strange proposition, after having succeeded in crushing this spirit and this idea of government in Europe, and upon the battlefield on which so many of our men sacrificed their lives, that it should be urged now in civil life and in the courts, that we should place in our government the same proposition as a means of menace to our government. We had thought that in crushing that spirit in Germany it was forever eliminated from consideration in American institutions. If the Attorney General's contention is correct, that military necessity can dominate our government, then our struggles in the great war have been in vain. It ought not to be expected that the courts of this country will lend their aid or endorsement to such a catastrophe.
The authorities holding that the people of the county may hold a local option election and by a majority vote establish prohibition effective throughout the county, even though a precinct had decided to the contrary, are supported by the provisions of article 16, section 20, of the Constitution. These authorities when analyzed are consistent with and support the original opinion in this case
It is also provided by the Constitution that by their vote the people may change, alter or amend the Constitution as they deem proper, and thus supersede existing provisions of that instrument. Article 1, section 2, article 17. Therefore, the people may by this means supersede the entire local option provision of the Constitution, and by so doing repeal and annul the law as adopted by the people in the county, and its subdivisions. This can be accomplished only by a vote of the people. It can not be done by a vote or Act of the Legislature. To that body such power has not only not been delegated, but has been expressly withheld as evidenced by provisions of that instrument above cited.
These provisions and authorities are not only consistent with the original opinion, but are basic in its support.
In writing what I have written it was with a view of concurring with Judge Morrow in the opinion originally handed down that he was correct, and ought not to be to our people a subject of discussion or question for debate.
I, therefore, concur in overruling the motion for rehearing. Let the Constitution still be paramount as it is written and ordained, and so *Page 314 remain until the people see proper to change it in the manner pointed out and required by the Constitution, or by ordaining another Constitution.