I most earnestly but respectfully dissent from the conclusion reached by my brethren. While I dissent upon several of the propositions enunciated and decided in the majority opinion, I will confine what I have to say to two questions, first, in sustaining the authority of the city court to entertain jurisdiction of violations of the State law, and, second, to the arbitrary and discriminating effect of the city charter. It is stated that the case of Ex parte Wilbarger, 41 Tex. Crim. 514, practically overrules all that line of cases which held that the Legislature was without authority to grant jurisdiction to city courts to try State cases. I do not care to review the many questions that arose in the adjudicated cases of the Supreme Court and Court of Criminal Appeals in regard to this question. But I can not assent *Page 474 to the proposition that the Wilbarger opinion overruled those cases. If Judge Brooks' individual views are to obtain, as stated in Ex parte Hart, then the position of the majority is correct. The writer dissented in that case and Judge Henderson did not concur with Judge Brooks's views except insofar as to agree that the corporation court act passed by the Legislature subsequent to the Coombs decision in 38 Tex.Crim. Rep., authorized the city to abolish the city courts and adopt the State corporation court. See opinion written by Judge Henderson in Ex parte Wilbarger, 41 Tex.Crim. Rep.. In the later case of Ex parte Sibley, 65 S.W. Rep., 372, Judge Henderson expressly held that where the State court was a part and parcel of the charter, that it did not confer jurisdiction upon such court to try State cases. In the case in hand the city court is created in the charter, and it is not the "corporation court" provided for by the Legislature. As before stated, I do not care to review these decisions, as they have been so often reviewed they are familiar to the profession. I say this much to show that the Wilbarger case on this question has never been acquiesced in by either Judge Henderson or the writer. It would not be contended under these circumstances that a minority of the court could overrule decisions. Under our Constitution it takes a majority of the court to decide the law. Nor do I understand that the case of Harris County v. Stewart, 91 Tex. 133, is directly in conflict with this statement. That case is in line with Ex parte Fagg,38 Tex. Crim. 573, and indirectly the Supreme Court intimated that the city court might have jurisdiction of cases of which justices of the peace would have authority to try. This question was so decided in Ex parte Fagg, supra, and concurred in by the then Presiding Judge Hurt, who had dissented in the previous case of Leach v. State, 36 Tex.Crim. Rep., 36 S.W. Rep., 471, and Coombs v. State, 38 Tex.Crim. Rep.. So then practically for the first time we have an adjudicated case by this court sustaining the view of Judge Brooks announced in Ex parte Hart, 41 Tex.Crim. Rep.. The Wilbarger case, supra, is not authority for the decision in this case in regard to the authority of the city court. As before stated, the author of the Wilbarger case wrote the Ex parte Sibley decision. As I understand the rule in Texas, until the decision in this case, same has been contrary to the views entertained by a majority of this court now expressed. See Sibley, 65 S.W. Rep., 372. Chief Justice Roberts so held in Holmes v. State, 44 Tex. 631. See also Bigby v. State, 44 Tex. 351; Ex parte Ginnochio, 30 Texas Crim. App., 584; Ex parte Knox, 39 S.W. Rep., 670; Leach v. State, 36 Tex.Crim. Rep.; Ex parte Fagg, 38 Texas Crim. App., 573; Ex parte Coombs, 38 Tex.Crim. Rep.; Whitener v. Belknap, 89 Tex. 273; Turner v. Southern Pine Co., 16 Texas Civ. App. 545[16 Tex. Civ. App. 545]; Ex parte Wickson, 47 S.W. Rep., 643; Ballard v. City of Dallas, 44 S.W. Rep., 864; Holland v. State, 39 S.W. Rep., *Page 475 675; Ex parte Towles, 48 Tex. 413; Williamson v. Lane,52 Tex. 335; Ex parte Whitlow, 59 Tex. 273 [59 Tex. 273]; Gibson v. Templeton, 62 Tex. 555 [62 Tex. 555]; State v. DeGress, 72 Tex. 242; Crowley v. Dallas, 44 S.W. Rep., 865; Titus v. Latimer,5 Tex. 433. It would seem that these cases are sufficient in number to show the continuity and harmony of the decisions in Texas from Titus v. Latimer, in 5 Tex. 433 [5 Tex. 433], to date, and a careful or even casual reading of the cases of Ex parte Wilbarger, supra, and Ex parte Hart, supra, would demonstrate these latter cases did not and were not intended to overrule the long line of authorities and the unbroken jurisprudence in this State. Those two cases were deciding a different question under a different law.
I am not unaware of the fact that this dissenting opinion perhaps will amount to but little, yet under the circumstances I feel not only justified but obligated to express my views and respectfully but earnestly protest to the overruling of all these cases and the upturning and unsettling of the well settled law of the State. I have always understood that where the Constitution marks out a judicial system and enumerates courts, that legislative authority can not interfere with or change either the courts or their jurisdiction. It will be observed by turning to the provisions of the Constitution in the judiciary article, that it is there specifically stated, ordained and laid down that in Texas there shall be as many as four justices of the peace in a county and there may be as many as eight, and should the county contain a city or cities of over eight thousand inhabitants, that there may be two justices of the peace in said town or city. This is the limit fixed by express provision of the Constitution. If the people have a right to ordain a Constitution and fix the limitation of legislative authority, which I understand is the case, then the Constitution has limited the number of justices of the peace, and further that only these officers shall be justices of the peace. This question was expressly decided and it was the only question decided in the opinion by Chief Justice Roberts in the Holmes case, supra.
As to the second question, that is, as to the authority given city councils to arbitrarily discriminate between cities pursuing the same business, that provision reads as follows: "Saloons: Power to close drinking saloons, dram shops and other public places where intoxicating liquors are sold or given away, and to close any theater or variety show when necessary or expedient; to make and enforce all needful regulations for saloons, dram shops and other public places where intoxicating liquors are sold or given away." In this connection, this proviso is found: "Provided, however, that at any one time not more than two saloons or retail liquor dealers shall ever be licensed or permitted to conduct a business in any one half block, and by half block as herein used, shall be held to mean that portion of a block between an alley and a street, and provided, further, that when two licenses shall have been issued to a saloon or retail liquor *Page 476 dealer in any one half block, that no other saloon license or retail liquor dealers' license for any one such half block shall thereafter issue for the period of time or any part of the period of time thereby covered by such two licenses issued; and provided, further, that in the event there should be at any one time more than two applications to the city collector for the issuance of saloon or retail liquor dealers' license for any particular half block, as herein defined, it shall be the duty of the tax collector aforesaid to refer all such applications to the city council of such city, which shall immediately determine which two said applications shall be accepted, which shall be determined upon question or point of priority of making said applications, and for any other good and sufficient reason, and the action of said city council shall be final, and provided the city council may refuse to issue license to a nonresident of the State." It will be difficult to imagine a more harsh, arbitrary and autocratic provision than that which authorizes the city council without hearing and without evidence and without notice to the interested parties to capriciously award license to one and reject license to another applicant. In the first place, these provisions are in conflict with the Baskin-McGregor law as I understand that law. It is conceded that the city has a right to fix saloon limits, but it is not conceded nor believed to be right or the law that within the saloon limits, a city council can arbitrarily choose who shall exercise the privilege of selling intoxicants within those saloon limits. When the applicant has complied with the State law, he has a right to sell under the privilege granted by the State within the saloon limits. If this is not a correct statement of the law, then the city council of Texarkana has the right to nullify the provisions of the State law and acts of the constituted and appointed authorities under the provisions of the State law. In other words, it makes the city charter paramount to the State law with power vested to suspend or repeal the operation of the State law, and this without giving any reason but arbitrarily and autocratically. Again, I am very firmly of the opinion that even the Legislature in its wildest stretch of omnipotence can not legally grant authority to a municipal corporation to set aside or suspend a State law. Section 28 of the Bill of Rights emphatically declares that no law shall be suspended except by the Legislature. That provision of the Bill of Rights, written prior to 1873, read as follows: "No law shall be suspended except by the Legislature or its authority." On account of the real or supposed autocratic and arbitrary action of the Legislature delegating power to the Governor of this State to set aside the laws under Governor Davis's administration, as soon as the Democracy of this State became enthroned in power under Governor Coke's administration, this section of the Bill of Rights was changed by direct vote of the people, amending it so as to eliminate the expression "or its authority." Hence, under the Constitution the Legislature only has power to suspend laws. *Page 477 Ours is a government of law with the Constitution as its chief bulwark in which the general principles of the government are laid down and limitation placed upon power of the mentioned agencies of the government. This is emphasized in the further provision of the Bill of Rights which says, "All power is inherent in the people." This is a truism, and of course until this power has been delegated to some agency, it remains with the people. Nowhere in the Constitution has authority been delegated to any of its agencies of government to suspend or repeal laws except the Legislature itself as shown by section 28 of the Bill of Rights, supra. If this is correct, then the Legislature would have no authority to delegate any power to suspend laws. It has always been understood that where a privilege is granted a class, that all persons coming within the class are entitled to the exercise of that privilege by complying with the requisites of the law. This provision of the charter requires the city council in selecting the two applicants who may be authorized to follow the pursuit or exercise the privilege of selling intoxicants on a half block, to give priority to those who first apply. The evidence in this case shows that the applicant was the second to apply and that he had been doing business upon that half block for a long time. It is further shown in the evidence that there were no charges preferred against him, and that practically there were none to be preferred. It is further shown in the evidence that by a vote of the city council applicant was debarred the privilege of pursuing his occupation, that he was not given a hearing, and no evidence was introduced, but the whole matter was decided adversely to him without giving him the opportunity of being heard. While the selling of intoxicants is deemed a privilege to be granted by the dispensing power, yet when rules have been laid down by legislative authority, by which the privilege is to be obtained, then all parties who desire to follow that occupation or exercise that privilege within the terms of the statute are placed upon the same plane, otherwise the law is discriminating, arbitrary and autocratic. It will be noted that the terms of the act quoted requires the city council to give priority to first two applicants, but this is practically nullified by authorizing the city council to arbitrarily discriminate against such applicants without assigning a reason and to reject such applications without even regarding such priority claims. I can not imagine a more arbitrary and autocratic power in the exercise even of discrimination than this. This is not the worst provision or feature of this would-be law. Its consummation of injustice is found in the fact that this arbitrary power and autocratic discrimination is made a finality. I have always been taught in our form of government that autocracy is not to be tolerated, and that when a citizen of this State, when his life, liberty, property, immunities or privileges are involved, desires, he has the right to resort to the courts to test those matters. If this act is to be the law in Texas, the action of the city council in passing *Page 478 upon the application of the right to exercise the privilege, is final, and the citizen is deprived of the right of resorting to the courts of the country to determine his rights, and this without even a reason or a cause being assigned by the city council for their arbitrary and autocratic action. The authorities are so numerous to sustain the position of the writer that this can not be done, it is deemed unnecessary to collate them. There is one case, however, which I desire to cite, to wit: Yick Wo v. Hopkins, 118 U.S. Rep., 356. In that opinion this language is found with reference to certain ordinances passed by the city of San Francisco: "There is nothing in the ordinance which points to such a regulation of the business of keeping and conducting laundries. They seem intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent, not only as to places, but as to persons. So that, if an applicant for such consent, being in every way a competent and qualified person, and having complied with every reasonable condition demanded by any public interest, should, failing to obtain the requisite consent of the supervisors to the prosecution of his business, apply for redress by the judicial process of mandamus to require the supervisors to consider and act upon his case, it would be a sufficient answer for them to say that the law had conferred upon them authority to withhold their consent, without reason and without responsibility. The power given to them is not confided to their discretion in the legal sense of that term, but is granted to their mere will. It is purely arbitrary, and acknowledges neither guidance nor restraint." These ordinances were held violative of the Fourteenth Amendment of the Federal Constitution, and the court further uses this language: "It was said in the first case cited, `undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone, except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition; and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses." It was further said in the same opinion: "When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude *Page 479 that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the Commonwealth `may be a government of laws and not of men.' For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself. There are many illustrations that might be given of this truth, which would make manifest that it was self-evident in the light of our system of jurisprudence. The case of the political franchise of voting is one. Though not regarded strictly as a natural right, but as a privilege merely conceded by society, according to its will, under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights."
And as further said by that same august tribunal: "But it commits to the unrestrained will of a single public officer the power to notify every person who now employs a steam engine in the prosecution of any business in the city of Baltimore, to cease to do so, and by proving compulsory fines for every day's disobedience of such notice and order of removal renders his power over the use of steam in that city practically absolute, so that he may prohibit its use altogether. But if he should not choose to do this, but only to act in particular cases, there is nothing in the ordinance to guide or control his action. It lays down no rule by which its impartial execution can be secured or partiality and oppression prevented. It is clear that giving and enforcing these notices may, and quite likely will, bring ruin to the business of those against whom they are directed, while others from whom they are withheld, may be actually benefited by what is thus done to their neighbors; and, when we remember that this action or nonaction may proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other improper influences *Page 480 and motives easy of concealment and difficult to be detected and exposed, it becomes unnecessary to suggest or comment upon the injustice capable of being wrought under cover of such a power, for that becomes apparent to every one who gives to the subject a moment's consideration. In fact, an ordinance which clothes a single individual with such power hardly falls within the domain of law, and we are constrained to pronounce it inoperative and void.'" These are words of far reaching import and great wisdom and are applicable to the question involved here. In fact, it would be a difficult thing to find in any law or in any act of any legislative body power more arbitrary and autocratic than that quoted in the charter of the city of Texarkana, and I do not understand how it is possible that the citizenship of Texas can be required to hold their rights, privileges, life and liberty under such arbitrary rules of autocratic power. Quotations like that taken from the decision of the United States Supreme Court, above enunciated, could be multiplied indefinitely, and from every court of last resort in the Federal Union. The stretch of arbitrary power under discriminating statutes when upheld will bring more than serious trouble in the end. Ours are a people who believe in an adherence to the law of the land, and have never when their attention has been called to it yielded to a desire for arbitrary discrimination or autocracy in any form. In this day of latitudinarianism and exceedingly liberal construction, it may be well enough for the judiciary to look well and guard closely against this character of vicious legislation. I am of opinion that section quoted is invalid, arbitrary and legally unjust, and should be held void.
I do not care to discuss the other questions, but some of those are, in my judgment, well taken, and should have been sustained. But I thought proper to make these remarks in regard to the questions discussed. I therefore enter my dissent.