The history of this case is briefly this: Reed was the owner of one or more pool tables and was operating them legally under the terms of the legislative Act requiring payment of taxes for that purpose, but when Ex parte Francis, 72 Tex.Crim. Rep., was decided by the majority of this court, upholding the validity of the local option pool hall Act, Reed at once ceased to operate his pool tables. Later the Supreme Court in Ex parte Mitchell, 177 S.W. Rep., 953, held the local option pool hall Act invalid and unconstitutional. Thereupon Reed paid all taxes required by the State, county, city and Federal authorities preparatory to opening his pool hall and operating his pool tables. Looking to this, in addition to paying the taxes, he rented a house that cost $35 per month and spent about a thousand dollars or such matter securing his tables, from which he expected to realize something like $150 a month; such is substantially the agreed statement of facts in regard to this phase of the case. In this condition of things the county attorney, Mr. McNamara, threatened Reed with criminal prosecutions for violating the local option pool hall statute if he should operate his pool tables. The pool hall Act had been favorably voted upon by the people of McLennan County, and so far as that vote is concerned it was placed in operation in that county. Reed's pool hall and tables were in the city of Waco, which, of course, is in McLennan County. These threatened prosecutions were based upon the proposition that the local option election had suspended the tax law of the State and that, therefore, Reed could not operate his pool tables under the tax law with which he had fully complied. Reed, through his attorneys, Messrs. Williams Williams, instituted injunction proceedings against the county attorney before Judge E.J. Clark, district judge, who granted a temporary restraining order or injunction. The county attorney then applied to the Court of Criminal Appeals for a writ of habeas corpus, a writ of prohibition and writ of mandamus. It seems from the opinion of Judge Harper that they did not then grant any of these writs, but suggested to the county attorney that he should move to dissolve the temporary injunction, and if this was refused, then present his application to the Court of Criminal Appeals. The motion was made to dissolve the injunction, which was refused by Judge Clark, and an order entered to that effect, and further that all the parties were to await the further order of his court. After the entry of this order the county attorney again presented his application for the three writs — habeas corpus, prohibition and mandamus. This occurred in vacation, but was granted by Presiding Judge Prendergast and Judge Harper. All three of the writs were included in the application and granting order, and Judge Clark, Mr. Reed and his attorneys were prohibited from taking any steps or doing anything whatever against the county attorney, McNamara, under and by virtue of the injunction suit and orders. The case was set down by my brethren *Page 578 for hearing on the 4th of October, upon the convening of this court. It was submitted on briefs and oral arguments at that time, and the court took it under advisement. Later Judge Harper wrote the opinion for the majority of the court overruling the district judge and sustaining the county attorney. In the opinion the writs of habeas corpus and mandamus seem not to have been discussed, but the opinion was based upon that part of the application which sought a writ of prohibition. So I take it for granted that the majority came to the conclusion that except as to the writ of prohibition their order was improvidently made. Be that as it may, they found that Judge Clark was in error in granting the temporary injunction and making his subsequent orders, and that he could not restrain the county attorney from prosecuting under the local option pool hall statute vitalized by reason of the favorable vote of the majority of the voters of McLennan County; that it was a binding and valid law by reason of that election, and that Reed was thereby interdicted from carrying on his pool hall or exhibiting his pool tables under the legislative tax Act. Under the tax Act he could run and operate his hall and tables; under the pool hall Act, if it is valid, he could not.
As I understand the record, Judge Clark has never finally disposed of the case before him. What his final order may have been in the premises would be to some extent speculative. He may or may not have perpetuated the injunction. The writer is of the opinion, however, that he should have perpetuated it. The authority of this court or its jurisdiction in the premises would depend, as a matter of course, and of law, upon the question of this court's jurisdiction to grant the writ of prohibition to restrain Judge Clark in the injunction case. That the order of the majority of this court is ultra vires and beyond their authority and jurisdiction is to the mind of the writer not even debatable, but the majority of the court having held the other way, I shall state some reasons why I am not concurring with them. In my conclusion, or from my viewpoint of the case and the law, and under the facts presented to this court, I am supported not only by the Constitution, but by the decisions of this court in Ex parte Mussett, 72 Tex.Crim. Rep., and Ex parte Zuccarro, 72 Tex.Crim. Rep.. I also am of the opinion that I am further supported in this conclusion by the opinions of the majority in Ex parte Francis, 72 Tex.Crim. Rep., and Ex parte Mode, 73 Tex.Crim. Rep., 180 S.W. Rep., 708. These were all habeas corpus cases. In the Mussett and Zaccarro cases, supra, it was decided that contempt punishment for violation of injunction orders was a civil proceeding, of which the Court of Criminal Appeals could not entertain jurisdiction. That was the only assigned reason for dismissing the application for writs of habeas corpus in both of those cases. An inspection of those cases will show that injunction had been granted in each prohibiting and enjoining the owners of moving picture shows from operating their shows on Sunday, which in Ex parte Lingenfelter, 64 Tex.Crim. Rep., and Oliver v. State, 65 Tex. Crim. 150, was declared *Page 579 to be a violation of the Sunday law. I did not agree with my brethren in those matters, but their decision became law by the majority opinion applicable to "moving picture shows on Sunday." The parties, Mussett and Zaccarro, ignored and violated the injunction of the District Court of Tarrant County, and was by the district judge placed in contempt of his court, and punished as authorized by the statute, and to the limit. Each party applied to this court for a writ of habeas corpus, which was granted, set down for argument, heard on oral argument as well as on briefs. Subsequent to the submission of these cases Judge Harper wrote the opinion in Mussett's case, and Presiding Judge Prendergast wrote the opinion in the Zaccarro case, holding they were civil cases and this court had no jurisdiction, dismissing both cases from this court without prejudice should they make application to the Supreme Court. It seems Mussett and Zaccarro applied to the Supreme Court after the rendition of the opinions by the majority of this court, and were granted writs of habeas corpus, and discharged from custody, as they should have been. Speaking of the question as to whether the Zaccarro case was a civil or criminal case, Presiding Judge Prendergast uses this language: "We are met at the threshold of this inquiry by the question of whether or not this court has jurisdiction to grant the writ of habeas corpus in this case.
"That the case in which this punishment in contempt was imposedis a civil case, we have no doubt. Any judgment which would havebeen rendered by the District Court of Tarrant County in saidcause could only have been appealed, and by either party, to thecivil courts of this State, and it could not have been appealedto this court. (Italics mine.)
"By the Constitution of our State this court has jurisdiction in criminal cases only. It has no jurisdiction in civil cases of any character. It can not grant a writ of habeas corpus in any case except a criminal matter.
"Likewise, our Supreme Court, and the justices thereof, are given power and authority expressly by our Constitution to grant and hear writs of habeas corpus in all civil cases, and the Supreme Court, and neither of the justices thereof, have any jurisdiction, power or authority to grant such writs in criminal cases.
"It is true that this court, in the case of Ex parte Allison, 48 Texas Crim. Rep., 634, in a matter practically exactly likethis, granted and heard a writ of habeas corpus and decided itNovember 15, 1905. It may be that in other cases since then thiscourt has first granted writs of habeas corpus in such matters.We can but believe that this court inadvertently did so withoutits attention being called to the amendment of our Constitutionand especially to this statute."
The Allison case was subsequently brought before the Supreme Court and that court entertained jurisdiction. The Allison case was a violation of an injunction as was the case of Zaccarro, herein quoted.
Quoting from Ex parte Mussett, supra, which opinion was written by Judge Harper, I find this: "Without entering into a discussion of the merits of these two propositions, we are met at the threshold with *Page 580 the grave proposition, even if relator is entitled to relief, to which court should the application for a writ of habeas corpus be presented — to this court or the Supreme Court? They are both courts of final jurisdiction, in matters in which they have any jurisdiction, and from the action of either no appeal will lie. If we assume jurisdiction, and order the writ to issue, it should be a finality whatever order we might make, and if the Supreme Court should entertain jurisdiction and order the writ to issue, likewise its orders should be a final disposition of the matter." The judge then enters into a discussion somewhat of the Allison case decided by the Court of Criminal Appeals, 48 Tex. Crim. 634, and also the same case by the Supreme Court in99 Tex. 455. Quoting further from the opinion in the Mussett case, this language is used:
"That a suit brought to enjoin one from doing any act or thing,we think will be conceded by all to be a civil case. An appeallies to the civil appellate branch and not to this court. Thatthe suit instituted in the District Court of Tarrant County fora writ of injunction was a civil case will, we do not think, bequestioned; that the order made by Judge Simmons was in thiscivil suit is certain, and it is equally certain that relator isrestrained of his liberty by virtue of an alleged violation ofthis order, and an order made in that case. To our mind, takinginto consideration our Constitution, and the amendment thereto,the acts of the Legislature, in pursuance of this amendment tothe Constitution, quoted above, it was the clear intent andpurpose, that in this character of case the application for awrit of habeas corpus should be addressed to the Supreme Court,and not to this court. Its action will be final, and will finally determine the question of whether or not the civil courts have jurisdiction to entertain suits and enjoin in cases of this character where specific authority to do so has not been conferred on them by the Legislature. Any expression we might give upon that question would not bind the Supreme Court, while it would be the duty of all courts to abide the opinion of the Supreme Court in the premises, and it would be our pleasure to respect it as the opinion of the court having final jurisdiction in the matter.
"We have held that the opening of shows of the charactermentioned in plaintiff's petition was a violation of the Sundaylaw, and we adhere to that opinion, and we are sure that the Supreme Court will and does appreciate the fact that our decision should be final in that matter. But whether or not they can beenjoined from opening on the Sabbath involves a construction ofthe jurisdiction of District Courts in civil matters, and thusunder the law, they are made the final arbiters, and we and allothers should and will bow to their opinion. (Italics mine.)
"Being of this opinion, the application to this court for a writ of habeas corpus is denied, but in so ordering it is done without prejudice to the right of relator to apply to the Supreme Court for a writ."
In the instant case the statement of facts shows that Judge Clark had granted an injunction restraining the county attorney from interfering with Mr. Reed in his pool hall exhibitions, or the running of *Page 581 his pool tables. The county attorney had not violated this injunction, and, therefore, the instant case is not burdened with contempt proceedings. Here we have the simple question as to whether or not this court can issue a writ of habeas corpus or prohibition in a civil case without even a contempt punishment attached to it for any violation of the injunction. In the Mussett and Zaccarro cases, supra, there had been an injunction. This injunction had been violated and contempt proceedings instituted and the parties placed in contempt with a judgment awarded against them punishing by fine and imprisonment for disobedience of the injunction. Here we have nothing of that sort. We have simply, only and purely an injunction. If the contempt proceeding in the Zaccarro and Mussett cases, supra, growing out of an injunction, was a civil matter, certainly this case can not be dignified as a criminal case, as none of the elements of criminality attach to it. Mr. Reed had sued out his injunction upon the theory that he had prepared himself and paid out his money for a house, etc., and was deprived of pursuing his business. He had a property right in the matter which he had a right to test. He could not test this in a criminal action. It could only be done in a civil case, and wherever his property rights are affected to a sufficient extent an injunction may be used to restrain the parties seeking to injure that business. He is at least entitled to a hearing on the injunction, and if the court granting the injunction should agree with him he is entitled to its perpetuation. He should be awarded the protection of the law against unlawful interference with his property rights.
Our Constitution provides that this court shall have authority to issue writs of habeas corpus. This is general and will apply wherever a party is illegally restrained of his liberty. McNamara, the county attorney, was not restrained of his liberty in this case, therefore the writ of habeas corpus could not apply. Section 5 of article 5 of the Constitution reads as follows: "The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law. The Court of Criminal Appeals and the judges thereof shall have the power to issue the writ of habeas corpus, and under such regulations asmay be prescribed by law, issue such writs as may be necessary toenforce its own jurisdiction. The Court of Criminal Appeals shall have power upon affidavit or otherwise to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction." It will be seen from this language that not only the court but the judges of the Court of Criminal Appeals shall have power to issue writs of habeas corpus. But it further provides that under such regulations as may be prescribed by law the court may issue such writs as are necessary to "enforce its own jurisdiction." As was said by Presiding Judge Prendergast in the Zaccarro case, and Judge Harper in the Mussett case, supra, this court would have no authority to issue any writ in a civil case because of the fact this court has no jurisdiction in such cases, its jurisdiction being confined to criminal *Page 582 cases. That an injunction suit is not a criminal case is fully adjudicated by those two decisions, and in fact it is not debatable. The fact that the injunction in this particular case is a civil matter is recognized in the opinion written in the instant case by Judge Harper. I quote, in this connection, from the opinion: "Taking into consideration the law governing appeals in this State, the county attorney would be compelled to appealto the Court of Civil Appeals, and if that court should decidethat the writ was wrongfully issued, Mr. Reed could apply to theSupreme Court for a writ of error, and if granted, taking intoconsideration the well known condition of the docket of theSupreme Court, it would be two or three years before it could befinally determined whether or not the county attorney couldinstitute criminal proceedings." This is an expressed recognition of the doctrine laid down by the majority opinion in Ex parte Mussett, supra, and Ex parte Zaccarro, supra. It is an emphatic statement that the county attorney could not appeal to the Courtof Criminal Appeals. That he necessarily would have to go on his appeal to the Court of Civil Appeals, and thence, if the parties were not satisfied, by writ of error to the Supreme Court is expressly held. This ought to have settled this case with an opinion holding exactly the opposite of what the opinion does hold. Delay in decision of a civil case does not conferjurisdiction of such case on this court. The Constitution only authorizes this court to issue these extraordinary writs to"enforce its own jurisdiction." Const., art. 5, sec. 5; Hoony v. Shepperd, 105 Sup.Ct. Rep., 237. Especially see Milam Co. v. Bass, 106 Tex. 260. This last cited case so clearly, accurately and succinctly states the rule as to when writs of prohibition can issue to enforce the jurisdiction of the granting court I would quote freely from it but for the length of this dissent. That case shows the utter fallacy of the decision in this case. This court can not issueextraordinary writs to acquire or assume jurisdiction of amatter that is a civil case and which under no circumstancesthis court could entertain jurisdiction or try. If this court should not have jurisdiction and could not entertain jurisdiction in any given matter, it would be powerless to issue writs to enforce a jurisdiction in a matter over which it did not and could not have authority. Nor can this courtuse the writ of prohibition as a regulatory process. It canonly use it "to enforce its own jurisdiction." It can not be used to prevent the District Court from exercising its jurisdiction. Milam Co. v. Bass, 106 Tex. 260.
There is some intimation in the opinion of the majority in this case that the pool hall law being a criminal law, that, therefore, this court could entertain jurisdiction of the injunction because it enjoined a threatened criminal prosecution. There was no criminal prosecution pending, if I understand the facts of the case as agreed to by the parties, but the county attorney was threatening to prosecute for violations of the poolhall law. But be that as it may, that identical question was decided by my brethren to the contrary in the Zaccarro and Mussett cases. There a violation of the Sunday law was enjoined. The majority *Page 583 of this court held in Lingenfelder and Oliver cases that such was a criminal case, that is, a violation of the criminal statute which prohibited the exhibition of moving picture shows on Sunday. It was upon a disobedience of that injunction the parties were fined for contempt. They held the Mussett and Zaccarro cases were civil cases and that an appeal could not lie from an injunction to this court. They, therefore, dismissed the writs of habeas corpus in both cases, and the parties went to the Supreme Court for adjudication because the cases were only civilproceedings. That was the only question involved in those cases, and is the main question involved in this case. If this court had no jurisdiction of an appeal, and could have no jurisdiction of an appeal in an injunction case because it was a civil case, it would be a difficult proposition to assert, understand or to maintain that on account of the "public interest" or delay it might entail in the decision of the matters involved, therefore, this court could assume jurisdiction in a civil case, and this simply from the standpoint of public policy or "public interest," or the incidental delay of final decision on appeal by the civil courts. The Constitution placed those matters of "public interest," where they are civil cases, in the hands of those courts having jurisdiction of civil matters. It did not place them in the hands of those courts which alone have criminal jurisdiction. If the Constitution in dividing jurisdiction, awarding to the Supreme Court ultimate and final power in civil matters, and intermediately in the Courts of Civil Appeals, confining the jurisdiction of this court only to criminal cases and appeals in criminal cases, means anything, then this court can not have or entertain legally jurisdiction of civil matters, and especially in injunction cases that pertain to civil issues or property rights.
I do not purpose to review the question of injunction in criminal cases. My views are known, as shown in various dissents that I have taken occasion to write, commencing with Allison v. State, 48 Tex.Crim. Rep., down through the stages of the advancing injunction matters in criminal cases under what is, or seemed to be termed the "progressive and evolutionary authority of police power." I do not understand how it can be thought, under a constitutional form of government, that police power can reach beyond the plain provisions and inhibitions of the constitutional requirements or limitations. Nor can it be conceived how the police power can be used to overturn or override the plain exactions and provisions of the organic law.Necessity has been used to bolster and enlarge the police power, and the police power has been used to aggravate and augmentnecessity, but no power, police or otherwise, and no necessity, however urgent, should be entertained, and can not be legally entertained, that violates the provisions of our Constitution. It is the fundamental law, superior to all departments of the government. There is a limit to police power, which, under stress, is sometimes applied on assumption of power and relied upon to sustain such assumption in the face of the provisions of the Constitution, though in this connection it has been stated "that police power is inherent in government." That is a very latitudinous statement, *Page 584 and one which as applied upon inspection and in final analysis is not correct. "Inherent power in Texas" is in the people, not in the government. Const., art. 1, sec. 2. The government can only exercise such authority as is conferred upon that government or its created departments through the "inherent power of the people." This is so by express provisions of the Constitution in the Bills of Rights. Section 2 of the Bill of Rights thus provides: "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." The people have not conferred this power upon the government or the Legislature through empty sounding phrases of "police power." They have conferred upon the Legislature and other departments of government such authority as they saw proper to invest in them, to be exercised under the delegated authority, and to the end that there might not be any mistake about this and that the "inherent power of the people" might not pass from them to these agencies and departments of government, they saw proper to emphasize and reemphasize "their inherent power" in the following language (sec. 29 of the Bill of Rights): "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." If the "inherent power" is in the people, as is set forth in section 2 of the Bill of Rights, and not "in the government," it would be a difficult matter to understand how, in the face of the provisions of section 29 of the Bill of Rights, the Legislature may assume, without violating the Constitution, or this court uphold such assumption without direct infringement of the Constitution, any power by any department of government where the inhibition is set forth as it is in the Bill of Rights. This is a dangerous proposition to the liberty of Texas citizenship, and it is more than a dangerous proposition to the perpetuation of constitutional representative form of government. It means the overthrow, in the face of these provisions, of the plain inhibitions set forth in the Constitution and reserved by the people to themselves, and this by the agencies created by the people through their organic law. It is an assumption of original power. It ignores delegated authority.
I had not intended to write in any extended manner on this question, but regarding it as important I have written beyond what I originally purposed to write.
Another phase of this case I desire to mention. In Ex parte Francis, supra, as in Ex parte Mode, 77 Tex.Crim. Rep., 180 S.W. Rep., 708, the majority opinion concedes that if the Act in question delegates power or authority to enact, put into operation or suspend a law of the *Page 585 State, it would be unconstitutional. In both cases the opinion concedes that if there was a delegation of authority by the Legislature to the people in regard to the local option election under the pool hall law, or if having exercised such authority, and by reason of the vote under the provisions of that act the pool hall law went into effect, and operated to suspend any law of Texas, the pool hall law would be invalid. However, those opinions both hold that it was neither a delegation of authority nor could it operate to suspend any State law. The Supreme Court took the opposite view and held it unconstitutional. Ex parte Mitchell, 177 S.W. Rep., 953. The majority of that court held that local option law invalid. Judge Hawkins dissented. The majority of this court held it valid, the writer dissenting. Now, this case brings the matter to a crisis. The issue is as sharply made by the facts as is possible for facts to make an issue, and clearly demonstrates the correctness of the view of the Supreme Court, and the views expressed by the writer's dissenting opinions. The opinion in this case by the majority is in direct conflict with what they wrote in the Zaccaro and Mussett cases, supra. In the instant case the agreed facts show that Reed was operating a pool hall, exhibiting his tables, etc., when the Francis case was written. The people of McLennan County voted the pool hall law into operation under the provisions of the Act authorizing such election. When the Francis case was written Reed ceased operating his pool tables. However, when the Supreme Court wrote the opinion in the Mitchell case he prepared himself to exhibit and operate his tables. He complied with the tax law fully, so far as its provisions were concerned, taking all necessary steps. The injunction proceedings followed, and the county attorney was enjoined from prosecuting Reed. Now we have two laws: one directly by the Legislature under which Reed was authorized to operate his pool tables by paying the specified tax, and under the other law he was interdicted under heavy penalties from exhibiting his pool tables. He was met under this condition of things with threatened prosecution because the pool hall law had been voted into operation by the people of McLennan County. Now if the tax law was not suspended by the local option law vitalizing the pool hall Act, he certainly could operate his tables, had a legal right to do so, because he had fully complied with the tax law. If the pool hall law was operative in that county, it necessarily suspended the operation of the tax law, else Mr. Reed could exhibit his tables. My brethren deciding this case and restraining Judge Clark by virtue of their writ of prohibition, had necessarily to decide that the pool hall law superseded the tax law. If the tax law was not suspended, Reed had the legal right to operate his tables after paying the required taxes. If it was suspended by the pool hall vote, then the pool hall law was unconstitutional, admittedly so by the majority opinions in the Francis and Mode cases, supra, and if the law was unconstitutional by reason of the suspension, then Reed could operate his tables, because the tax law still remained in full force. Therefore the issue of suspension of the tax law vel non is the critical *Page 586 issue in this case, and it is the only real issue decided. Both laws could not legally operate in the same territory at the same time, and it is held in the prevailing opinion in this case that Reed could not operate his tables, and Judge Clark was ordered not to interfere with the county attorney in prosecuting him for violations of the local option pool hall Act. Under one of these laws he could operate; under the other he could not. One is a general Act of the Legislature, operative throughout the State, and was a revenue measure. The other was necessarily inoperative; at least until a vote of the people of a given community had vitalized it. The pool hall law would remain dormant until the end of time if the local option vote did not put it into operation. It could never interfere with the tax law until the local option election was held resulting favorably to the pool hall law. After that favorable action my brethren sustain the pool hall law and hold that the party can not operate his tables under the tax law. They hold the Legislature could authorize such elections. If they are correct, it is evident that such elections can only be held by virtue of the pool hall law. There is no other authority relied upon or shown which justifies such election. This is necessarily the reason, and the only reason, why Reed could not operate his tables, and it is the only reason assigned by the opinion of the majority upholding the local option pool hall law and restraining Judge Clark from interfering with the county attorney in his prosecution of violations of the pool hall Act. So if Reed operated his tables under the tax law he would be punished under the pool hall law, and if the tax law was inoperative it was so because the pool hall law had suspended it. The two Acts can not coexist and both be enforced, and this decision by the majority necessarily adjudicates the fact that the pool hall law did supersede the tax law and put it out of operation, else there is no basis for their opinion. Their opinion finds no other basis for support and assigns no other reason. Judge Clark may have granted the injunction upon the theory that the pool hall law operated a suspension of the tax law, and was, therefore, void. This was in accord with the opinion of the Supreme Court. It was also in accord with the majority opinion of this court in the Francis and Mode cases as well as the writer's dissenting opinion. The Francis and Mode cases both concede and hold that if the local option election operated a suspension of the tax law, it would be invalid and unconstitutional. Here we have the majority opinion expressly holding that it did suspend the tax law. It is the basis of their opinion, and if that proposition is taken out of their opinion, there is no reason for the conclusion they have reached. If this was not a delegation of authority by the Legislature to the people to hold a local option election, it may be pertinently asked from what source did these voters obtain the authority to hold that local option election? It is only found in the body of the Act, and it is found nowhere else. The Legislature placed it there. The people exercised it, voted favorably upon the pool hall law, and this necessarily, under the prevailing opinion, in this case, voted out and suspended the tax law. If this is not a delegation of authority to those *Page 587 people to vitalize the local option pool hall law, it would be difficult to understand what it is, or what is its operation. The exercise of that authority by the people vitalized the pool hall law in McLennan County, and the pool hall law was not vitalized otherwise, and if it was not thus vitalized and put into operation, it necessarily is not in existence, and if it becomes operative, as my brethren hold in restraining Judge Clark, it necessarily suspends and puts out of operation the tax law. Of course, this is upon the theory that the local option election was a legal one, and my brethren hold that it is. It can not be legal as I understand the law. So from any viewpoint, whether from the decision of the Supreme Court in the Mitchell case, or the opinion of the majority and dissenting opinion in this court in Francis and Mode cases, it is not only a delegation of authority to vote out the tax law by local option election, but it was actually consummated by voting the pool hall law into existence, which necessarily, if the election be valid, brought a suspension of the tax law. I cite the Mode and Francis cases, and the Mitchell case, and the majority opinion in the instant case in support of that proposition. If the local option election had failed to carry, the tax law would have remained in full force and effect. As the local option election did carry, the tax law ceased, at least the majority so hold in this case. The pool hall election won. This put out of operation the tax law; at least this is the decision of the majority in this case. I can not see how my brethren reached their conclusion, viewed from any legal standpoint.
I might follow this with other reasoning, but it seems to me this is sufficient. I desired to express some views about the matter, which I have done. I, therefore, enter respectfully my dissent from the conclusion reached by the majority in this case. Judge Clark should not have been restrained, and the only authority for restraining him is that the pool hall local option election suspended the tax law.
June 30, 1916.