Ex Parte Mode , 77 Tex. Crim. 432 ( 1915 )

It is not my purpose to review the opinions and extensive quotations therefrom found in the majority opinion. These cases are, in the main, from other States, and relate largely to legislative authority over municipal corporations, and the extent of such authority or policies in those States in regard also to the liquor traffic as developed under their constitutions and jurisprudence. For instance, take Ex parte Beck, 162 Cal. 701, so extensively quoted from and relied on by majority opinion. Beck was charged with conducting a retail liquor saloon in the town of Paso Robles, "where alcoholic liquors were not permitted to be sold, it being an incorporated city and ``no license territory,' he not being a licensed pharmacist." Quoting from that opinion, the court thus states the case: "The question presented by this proceeding is the constitutionality of an Act of the Legislature generally known as the ``Local Option Act,' approved April 4, 1911 (Stats. 1911, p. 599), with reference specially to cities and towns organized and existing under the Municipal Corporation Act, of which the City of Paso Robles is one." Thus it will be seen that the liquor question and municipal authority are concentrated in that case. The Beck case is erroneously relied on to sustain the proposition that in Texas a city may set aside a general State law. In our Constitution (art. 16, sec. 20) the people expressly reserved to themselves the power by "local option" to control the liquor question whether it be in a county, city or town, so that no question of delegation of power could possibly arise. In express terms therein the inherent power of the people withheld and retained this power in themselves, and article 11, section 5, with reference to cities and towns, expressly provides, "that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State or of the general laws enacted by the Legislature of this State." The total inapplicability of the Beck case to the question in this case is plainly apparent therefor in view of these provisions of our Constitution. I do not purpose to discuss those cases further. Those decisions are of but little weight and less value in Texas in view of the fact that all these matters are controlled by the provisions of the Texas Constitution. The Constitution must of necessity be of controlling authority where it speaks. So far as this case is concerned, some of these provisions are operative only through local option elections such as stock laws, some bond and tax matters, and others which pertain to charters of cities and towns as is evidenced by an inspection of article 11, section 5, of the Texas Constitution. This last section provides that inhabitants of each municipal corporation may do certain things by local option methods, but these are expressly controlled by a provision in the same section of the Constitution, which declares that "No charter or any ordinance passed under such charter shall contain any provision inconsistent with the Constitution of the State or of the general laws enacted by the Legislature of the State," etc. These peremptorily and conclusively dispose of all the cases cited or quoted by the majority holding that the referendum election can otherwise impinge or set aside or be in conflict with a general State lawin Texas, even if it be conceded that the cases cited by the prevailing opinion so hold. The Constitution also provides for referendum elections to remove county seats from one point to another point in the same county. Article 9, section 2, State Constitution. There may be other instances set up in the Constitution where local option elections are authorized. The most notable are those in regard to the liquor traffic, bond issues and tax matters as specified, as well as stock running at large. These are upheld with us because specially authorized and demanded by the Constitution. Cases from other States are unnecessary and valueless under such circumstances, and, therefore, uselessly cited. Such quotations do not add strength to the majority opinion and are of no value except as to space and quantity. Our Constitution speaks for itself and voices the will and power of our people to be as expressed by them in their organic law. Decisions of other States can not add to nor detract from the provisions of the Constitution of Texas. Our own courts are not empowered to so decide. We, therefore, have two broad and distinctive classes of legislation; one is general, and may be denominated State laws; the other, local or local option laws. The general laws apply as a rule to the State at large, while the other applies to local or derivative creations of the State. Local option laws are exceptions and supersede laws in conflict with them when voted into operation within the given or authorized community. Where authorized by the Constitution, these local option laws suspend, annul or abrogate for the time being the general laws of the State, where the general law is in conflict with the local option law, except as provided in article 11, section 5, supra. This is fixed definitely by the Constitution itself and all the decisions of Texas so hold, so far as I am aware. If the constitutionally authorized local option law goes into effect, as provided, it suspends and supersedes all laws in conflict with it during its existence. This local option law has the same effect as the Constitution itself, in that territory; because the people so ordained in the organic law, and it is, therefore, placed beyond legislative power to control, suspend or annul, or to add to or detract from such local option law after once voted into existence in the given territory. Lewis v. State, 58 Tex.Crim. Rep.; Dawson v. State, 25 Texas Crim. App., 670; Robinson v. State, 26 Texas Crim. App., 82; Ex parte Cox, 28 Texas Crim. App., 537; Ex parte Banes, 39 Tex.Crim. Rep.; Aaron v. State, 34 Tex. Crim. 103; Adams v. Kelly, 44 S.W. Rep., 529; Robertson v. State, 5 Texas Crim. App., 155; Lynn v. State, 19 Texas Crim. App., 293. Wherever the provisions of such local option law have been adopted, including specially the punishment, it will remain inviolable as adopted until the same vote which adopted it shall reject it and accept by another vote the new provisions of the Act or abolish it. These constitutional provisions ordained the only authority to suspend or vacate the operation of general or State laws. There is no authority in Texas to otherwise suspend general laws except by the Legislature itself. Article 1, section 28, Constitution, which reads as follows: "No power of suspending laws in this State shall be exercised except by the Legislature." In all prior constitutions until 1874 this section was in the following language: "No power of suspending laws in this State shall be exercised except by the Legislature or its authority." In 1874 this section was by a vote of the people amended so as to expressly prohibit the Legislature from granting any authority to any person or body of men to suspend laws. It became, therefore, absolutely necessary in order to avoid this section and its commanding influence that the Constitution itself should specifically provide otherwise with reference to local option laws. The reason and the facts incident to and which brought about this amendment are as historical as are those which Texas history manifests of the strenuous times immediately following the Civil War and reconstruction days. By the decision of the majority of this court in the instant case that amendment is practically disregarded, if not destroyed, and legislative authority to others to suspend State laws by constructions is upheld in the face of these plain provisions of the organic law. It took these provisions in regard to local option matters to authorize the existence of such local option laws. They had no place and could have none in Texas without this express authority by the ordained organic law. To emphasize the force and effect of the above mentioned amended section and to eliminate all rules of interpretation and construction by courts or other departments of the government, "the inherent power of the people" ordained in section 29 of the same Bill of Rights that "to guard against transgressions of the high power 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." The local option phases of the Constitution may be regarded as a withdrawal by the people of the force and effect of section 28, article 1, above quoted, in so far as it applies to such laws. Under those local option laws the people reserved to themselves the right to suspend by their own vote the force and effect of general laws when in conflict with their favorable vote in regard to such local option laws. Language could not be clearer or more easily understood than that contained in the section quoted. These matters can not be evaded and set at naught by casuistry or coined rules of interpretation or construction. Section 29 of the Constitution above quoted absolutely interdicts all rules of construction or interpretation which interferes with these commands of the Constitution. Technicalities can not overthrow the Constitution, not even at the hands of courts. The Legislature can not delegate its delegated authority. Whatever of delegated authority is expressed in the Constitution must of necessity remain as specified. Such delegation is incapable of being redelegated. The authority provided in the Constitution for local option laws and their requirements at the hands of the Legislature to provide suitable rules and procedure to enforce these local option laws is not a delegation of power to that body. It emphasizes the fact that power can not be redelegated by the Legislature, and that such power was not delegated to the legislative body, but reserved by the people in themselves. It is a command to the Legislature to do these things, the people reserving to themselves expressly and exclusively the right to place such laws into operation and expressly excludes that power from the Legislature. It is, therefore, not a delegation to but a reservation of power from and a limitation upon the Legislature. The Legislature is required to pass these laws subject only to the approval of the vote of the designated divisions or subdivisions of the State. Whatever of delegation to the Legislature is granted is to be found in the Constitution and limited, and goes to the extent of requiring the Legislature to pass laws to enable voters to put such laws into operation. This authorizes only the people to vitalize such local option laws. The power is not only not granted to the Legislature but is expressly withheld. In other words, it is a reservation by the people to themselves of the power to vitalize such laws. It is not a delegation of authority to the Legislature to do so. It is an interdiction of power. It would follow, then, as a matter of course, that any referendum not authorized by the Constitution would be void, if these provisions of the Constitution are to be observed. It does not belong to any or all departments of government to say that any constitutional provision shall or can be disobeyed, ignored or destroyed. Our people ordaining the Constitution saw proper to write as they did write, and this is binding completely on our people and all the departments of government until the Constitution has been changed by the inherent power of the people by amendment as provided in article 17 of the Constitution. The people may change a Constitution or make a new one, but no other authority can do so. The Constitution in a sense is itself a referendum organic law and can not be changed or modified except by a direct vote of the people and of the vote of the entire people of Texas. Same authority. This is the scope of the referendum so far as it applies to the Constitution, or any changes to be had in it. No subdivision of Texas can amend the Constitution but it takes a vote of the entire State to do so. A general law, therefore, is not and can not be the subject of a referendum. Nor can any law be in Texas except where specially authorized by the provisions of the Constitution.

Again, I may repeat, there is to be observed a wide difference between general laws and local option laws. The general law can only be passed and vitalized by the legislative body. The local option law can only be vitalized by a vote of the people of the designated territory. The initiative and referendum are not in vogue in Texas as to general laws, nor can be unless the Constitution be amended as to so authorize. The pool hall Act is, in a sense, a general law, and is so held to be by Judge Harper. It is also a referendum Act and can operate under referendum elections. In fact, that it is a general law forms the basis of his opinion and conclusion. It is not a local option law, and, indeed, can not be legally, as there is no constitutional warrant for its enactment as such a measure. Inasmuch as local option laws are provided by the Constitution, it follows that, if put into operation, they succeed all laws in conflict therewith. All the authorities in Texas so hold. This being true, when voted into operation they suspend and annul all laws in conflict with their provisions until the local option law is repealed or set aside at a subsequent election by a vote of the same people in the same territory who first placed it into operation. It is sacred from legislative repeal and invasion. Cases already cited settle this question. If such authority is not found in the Constitution toenact local option laws, it would seem to follow that if they areconstitutional as asserted by the majority, then such laws wouldbecome amendments to the State Constitution operative only in agiven or particular locality by the vote of such locality, and would, therefore, be binding as an amendment to the Constitution, in such territory, but only in such territory. It would not operate elsewhere and could not. There would be as many amendments, therefore, as the number of localities so voting, and each subject to abolition at the pleasure of each locality as the popular fancy dictates. Wherever the people have reserved the power to themselves to put into operation a law, whether it be the Constitution itself or some law provided for in the Constitution, it becomes as binding as the provisions of the Constitution itself, and having been passed as provided, it is safe from interference from any source except by a vote of the people. This would, therefore, clearly violate article 17 of the Constitution by the terms of which alone the Constitution can be amended, and this expressly so only by a vote of the entireState. The Constitution can not be amended by a vote of the justice precincts, counties, cities or towns, nor can these subdivisions amend, change or alter the law unless the Constitution expressly so authorizes. Elliott v. State,44 Tex. Crim. 575; Ex parte Pollard, 51 Tex.Crim. Rep.; Ex parte Fields, 86 S.W. Rep., 1022; Harris' Ann. Const., p. 56 et seq., for collation of cases. Some of the other cases have already been cited.

If the pool hall law is constitutional, there must be specific power somewhere to be found which authorizes its creation and existence, and this must be found in the Constitution itself. If that power be found in the Constitution, then a favorable action upon the law by a vote of the people would be valid and necessarily would suspend all conflicting laws. If no such authority be found specially, then it must be relegated to the general power of the Legislature. If that body can so enact constitutionally such laws, these laws would necessarily suspend all other State laws inconsistent therewith without resort to referendum elections. It would also necessarily follow that these laws would be as binding as the Constitution itself, and irrepealable except by another vote in the same territory where enacted or vitalized. In each of such instances in such included territory there would be a different Constitution operative from that in all other precincts and portions of the State not so affected — not by the provisions of the Constitution itself but by a general law of the Legislature. Such a proposition would be a legal anomaly, to say the least of it, and carries with it its own refutation. Harris' Ann. Const., pp. 209 to 212. In McDonald v. Denton, 132 S.W. Rep., 823, it was held that the Legislature alone has power to suspend the operation of general laws, and in exercising this power must make its suspension general but can not suspend general laws for individual cases or for particular localities, nor delegate such authority to local divisions to suspend such laws. Carefully reviewing this subject a great writer thus wrote and clearly states the rule: "If, however, no special authorization to submit a subject to the citizens is contained in the Constitution, the Legislature of the State is without power to call for a referendum on general State laws. To the Legislature the people delegated the law-making power, and it is not competent for it to redelegate its authority to any other body, nor even to pass it back to the people themselves. This is a well settled principle in American public law." If the pool hall law be a law at all, it is of a general nature to be made applicable to different localities by a vote of the people in those localities. In fact, its operation would seem to be an amendment to the Constitution applicable only to a given territory where the people so vote and this in the face of article 17 of the Constitution, as well as article 1, sections 28 and 29.

Again, it has been said, "As to the constitutionality or unconstitutionality of law-making by popular vote in and for States, excepting laws for counties, cities and local districts, there is today little difference of opinion. The general principle that a body acting under delegated authority can not redelegate its authority to some other person or body, is a well settled point in American law. Delegata potestas non potest delegari is a rule, the virtue of which no one disputes." Mr. Cooley says: "Where the sovereign power of the State has located the authority, there it must remain, and by constitutional agency alone the law must be made until the Constitution itself is changed. The power to whose judgment, wisdom and patriotism this high prerogative has been entrusted can not redeem itself of the responsibility by choosing other agencies, nor can it substitute the judgment, wisdom and patriotism of any other body for those to whom alone the people have seen fit to confide this sovereign trust." Constitutional Limitations, p. 137. "No power goes out of the State except by delegation. All power belongs to the State as much after delegation as before, and that delegated power must necessarily be used for the State by her substitutes and agents." Delegating sovereignty would be as manifest a solecism as delegating ownership to an agent, so in the latter case the agent becomes owner, as in the former the representation becomes sovereign, both cases being alienations or abdications unknown to legal or constitutional history. Delegation of sovereignty to a creature is an absurdity, only equalled by the absurdity of the transfer of allegiance. If sovereignty is transferable to the Legislature, the allegiance of the citizenship is equally transferable to the same body.

The basis of Judge Harper's opinion is that this has been changed by recent decisions and to sustain himself quotes extensively from the decisions of appellate courts of other States. I believe that the opinion in the instant case, as well as the majority opinion in Ex parte Francis, is in conflict with the State Constitution and the entire jurisprudence of Texas. I do not think, however, the authorities cited by Judge Harper sustain his statement that the recent decisions go to the extent of holding that legislative authority can supersede constitutional provisions, nor do I believe these decisions held or intend to hold, and were not so written. Those decisions would hardly assert the proposition that a general law of the State can be superseded by local option laws, unless by express constitutionalauthority, whether those local laws be by local option methods or by city ordinances. In any event and however done, if legal, the local law would become superior to the general law andnecessarily in conflict. One law or the other must be the superior. The Legislature is, therefore, without authority to call for the referendum of general State laws unless authority be expressly granted in the Constitution. This was announced in Texas as early as the Swisher case, 17 Tex. 441, and is still the rule as announced by the Supreme Court in the recent case of Ex parte Mitchell, 177 S.W. Rep., 953. Judge Harper's statement is to the effect that the Swisher case has been overruled. I can not agree with him on this statement unless it be by some recent decisions by the majority of the Court of Criminal Appeals, and it ought not to be held that the Court of Criminal Appeals, or a majority of it, has authority to overrule opinions of the Supreme Court. The Court of Criminal Appeals, as a court, or as majority or minority of the court, may take issue with the Supreme Court as to legal conclusions, but the Court of Criminal Appeals has no authority for that reason to overrule a decision of the Supreme Court. The Constitution has never invested the Court of Criminal Appeals with such authority, and my brethren seem to have recognized this very emphatically in the recent cases of Ex parte Zaccaro, 72 Tex.Crim. Rep., and Ex parte Mussett,72 Tex. Crim. 487. As late as last June the Supreme Court of this State reasserted the doctrine of the Swisher case. So we have that august body affirming and reaffirming the doctrine of the Swisher case from the time of its rendition to the present time. The Court of Criminal Appeals in Massey's case, 49 Tex. Crim. 60, adhered to the doctrine laid down in the Swisher case and cited it with approval. Again, the same doctrine and the same case was endorsed by this court in Ex parte Farnsworth as late as 61 Texas Crim. Rep., at page 346. So this court has not only not undertaken to overrule the Supreme Court on this proposition, but as late as the Farnsworth case expressly gave it its sanction and endorsement. In the Farnsworth case this language was used: "It is equally certain that the people can not be reinvested by the Legislature with the functions of legislation conferred by them on a department of government, nor can the Legislature render the enactment of a law dependent upon the acceptance by the people by popular vote." "This inability arises no less from the joint principle applicable to every delegated authority requiring knowledge, discretion and rectitude in its exercise than from the positive provisions of the Constitution itself." Same case. See also cases cited in the Farnsworth case at page 346. The court rendering the opinion in the Farnsworth case was composed of the same incumbents as now occupy that bench. That opinion was rendered as late as March, 1911. In that case the Swisher case was relied upon by this court as announcing the correct rule, and as the law of Texas. The difference between local and general laws on this question is and has been definitely recognized in all Texas jurisprudence until the instant case and Ex parte Francis. The instant case and the opinion in the Ex parte Francis case seem to have confused these questions and made them interchangeable and applicable as well to general as to local option laws. The difference between these propositions was well recognized in Werner v. Galveston, 72 Tex. 27. In that case Judge Gaines, for the court, said: "It is a well settled principle that the Legislature can not delegate its authority to make laws by submitting the question of their enactment to a popular vote," etc. Continuing that opinion recognizing this distinction he says: "But it does not follow from this that the Legislature has no authority to confer a power upon a municipal corporation and to authorize its acceptance or rejection by the municipality according to the will of the voters as expressed at the ballot box." Since that case the Constitution, article 11, section 5, has definitely settled the question. Any legislative Act which seeks to authorize the suspension of a general law is evasive of public duty and responsibility and the trust confided to the legislative body. It is void and of no effect. And it has occurred to me that such proposition can only be found in and based upon fear of public opinion. Afraid of responsibility in discharge of trusted duty and criticism that might follow, the Legislature says to the people: "We will refer this question to you. You elected us and we represent you. In this matter we will submit the law directly to you and if you are in favor of it you may pass it. If, however, you are opposed to it you will reject it. In any event you can not blame us." This quotation does not manifest decided evidence of Spartan courage. Such line of conduct and such shirking of duty on the burning ship would not have transmitted to history the heroic tragedy of Cassibianca, nor would the history of the stoic bravery of the Roman soldier have illumined the pages of the "Last Days of Pompeii." It may be the voice of Jacob, but it is the hand of Esau who gave away his birthright or bartered it for the "mess of pottage." It may be well enough once in a while to go back to first principles and look to the pages of our past history to shed light on the study of our present bearings. We find there is a grand old document of legendary lore among the archives of Texas history, sometimes mentioned, often ignored. The fathers called it the Constitution. It seems now, however, it belongs to ancient history, a relic of the past. It is still, however, a classic, and was written by master hands. It originated in intellectual power and greatness and was consecrated by earnest patriotism and sacred duty. It was regarded as the chart of our liberties and basis of the rights of a great liberty loving people, but like its great authors, it is becoming but a reminiscence of departed greatness and patriotism. In that instrument was written a legend to this effect, "All power is inherent in the people." It has been said that "all government was of the people, by the people, and for the people," but rapid progression seems to have changed this into the now prevalent idea that all government is "of commissions and bureaus," "by commissions and bureaus," "for commissions and bureaus" — not for a free people and constitutional government. The citizenship seem to be rapidly losing their creative and controlling power of government and becoming more rapidly governmental subjects, and this by assumption of original power by those clothed only with delegated authority. It was Edmund Burke, England's great statesman, but fearless friend of American liberty, who expressed the immortal truth and uttered the prophetic warning 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 of the world have been perverted from their purposes." Legislative action "acting as from original power" is in direct violation of every principle of constitutional government. The authority of that body is one of delegation, not of original power. It necessarily can not be a body of original authority. It is a created body by the people, exercising only delegated authority as set forth in their Constitution. Assuming to act from original power is usurpation of authority and dangerous, if not fatal, to our liberties and representative government. If this is indulged and sustained in respect to one thing, it would follow necessarily that it may be so in all respects, and in regard to everything pertaining to government. In that event inherent power would be no longer inthe people but assumed by the Legislature. The majority opinion concede that if there is delegation of power to vitalize the pool hall Act, or being vitalized by the local vote, it suspends the State law, it would be void. It seems to me that it does delegate power, and if exercised, as in the instant case, it would and does suspend all State laws in conflict with it, and of this proposition there ought not to be any doubt. The case is this: The Legislature levied a specified occupation tax on each pooltable operated in Texas. This authorized a further tax of half the amount of the State by the county and city for county and municipal purposes. Prior to and at the time of the passage ofthe pool hall local option law this tax law was in fulloperation, and revenues collected from the owners of the tables,and the operation of this law extended throughout the entireconfines of Texas. Now there could be no question that the pool hall law was operative and in full existence, and is yet, unless the local option law sets it aside in some given territory. Subsequent to this enactment of the tax law, the pool hall law was passed. It is not and can not be operative until voted on bythe people in a given community. Now, when this law is voted into existence in the given community, the question is, what effectdoes it have upon the existing tax law? That the tax law is in full operation will not be questioned before the pool hall law is vitalized. Can it be questioned that the moment a pool hall local option law goes into effect in that community, that Texas no longer can collect in such territory the specified tax levied on pool tables? Thatit can not be collected after that event is not a subject ofdoubt or debate. So, then, under the reasoning of the majority opinion we have two laws operative in the same territory at the same time. One levies a tax and the other prohibits it, but my associates hold one does not suspend the other, and that there has been no delegation of authority to do so. The fact is thatthe pool hall law, if a law at all and authorized, would and doessuspend the operation of the tax law. Expressly recognizing this, the Legislature at its last session passed an Act, on page 129 of printed laws of that body, requiring the refunding to the owners of pool halls in such local option territory the unexpended balance of their occupation tax, and this by reason of the fact, and for that reason only, that the pool hall law had put them out of business, and had suspended the tax law. The Legislature understood not only that they could not collect any further tax in the territory, but it was an act of injustice to the parties who had already paid their tax to such an extent they required the refunding of the money. The tax can not be demanded nor collected in local option pool hall districts any longer, if my brethren are right that the pool hall law is operative. If this is not a suspension of the tax law, it would be more than a difficult proposition to understand the operation of that law. My brethren may hold that both are operative and not in conflict, but it would be a very serious proposition to convince the operator of the pool hall that he could run his pool hall after this local option law had been put into operation. In fact, he would have a very convincing argument, absolutely demonstrated, that the majority were wrong, where, upon his disobedience of the pool hall law, he finds himself locked behind prison bars for such disobedience. I would congratulate my brethren, however, with having by this holding accomplished the very peculiar feat, towit: having two bodies occupying the same space at the same time, which are in direct conflict with each other. This matter has been the subject of many decisions, and all one way in Texas until the recent cases by my brethren. All decisions, so far as I know, have held that where an authorized local option law has been put into operation, it repealed or suspended all laws and parts of laws in conflict with it within the limits of the territory where the local option law is made operative. Robertson v. State, 5 Texas Crim. App., 155; Boone v. State, 12 Texas Crim. App., 184; Donaldson v. State, 15 Texas Crim. App., 25; Ex parte Lynn, 19 Texas Crim. App., 293; Ex parte Vaccarezza,52 Tex. Crim. 116; Williams v. Davisson, 70 S.W. Rep., 989. These are a sufficient number of cases without further citation. If the pool hall Act is constitutional its operation in the given territory would not be repealable by the Legislature, and could only be vacated by the action of the voters of the given territory; and, as before shown, it occurs to me, as to that territory, it would operate as an amendment to the Constitution because of its inviolability of being set aside except by a vote of the people. Judge Harper says that by reason of the decisions which he cites from other States, that now the Legislature can pass such laws and they will be held constitutional. If this is true, and the Legislature could so do, it may be seriously asked why our Constitution included local option provisions for local option laws, limiting the Legislature to specified subjects. If the full power already existed in the Legislature independent of these provisions, why specially so ordain, and why place the limitations, and why reserve the power to the people themselves? If they are correct, the people had already delegated such power to the legislative body and such provisions are more than useless, — worse than foolishness. These constitutional provisions expressly recognize the want of power in the Legislature to enact such laws. They are inhibitions against the enactment of such laws. These can only be enacted as specified in the organic law.

It is further to be stated that local option provisions in the Constitution expressly recognize and endorse the doctrine enunciated in the Swisher case, supra; therefore, such local option laws as were desired were placed in the Constitution. Thus far only was the doctrine of the Swisher case impugned but such provisions emphasized the doctrine of that case. It was otherwise fully and completely upheld and endorsed by the Constitution. If the inherent power of the people can not prescribe a constitution of controlling influence and command over its agencies and place limitations on such agencies, such inherent power becomes a mockery. The agent would become superior to the principal; the creature to the creator; the Legislature over the Constitution. Inhering in the majority opinion is to be found another dangerous proposition of recent growth and late development in this State, towit: that everything can be done by legislative authority with a view to the interests of society.

A great writer and student of American representative form of government, with full knowledge of the underlying principles of individual liberty and citizenship, as constitutionally promulgated, has said that such a proposition is "an impious adage, which seems to have been invented in an age of freedom to shelter all the tyrants of future ages." This means, if the majority opinion is correct, that our Constitution, Bill of Rights and reserved and sacred guarantees of life, liberty and property can be brushed aside by legislative caprice and overturned by assuming original but unauthorized power. It means the abolition of representative government. It means that these reserved rights to our people shall no longer be respected, if it is thought the interests of society is involved. Under that view the citizen no longer controls his government, but the Legislature becomes supreme, and autocratic. The far-reaching consequences of the majority opinion, if it is to become the law in this State, may not be readily seen at first blush. If it is to be hereafter regarded as the law it is evident, first, that the Legislature will be superior to the Constitution, and omnipotent in all legislative matters despite the obligatory checks placed in the Constitution; second, that local option is to be that rule of omnipotence, whether constitutional or not, for future government; third, paternalism to become the fixed rule with oppression the result; fourth, to reach that end socialistic theories are to be a controlling rule, and, fifth, the Constitution is to be no longer the rule in government. If the State law authorizes pool hall elections to suspend the tax laws, then why may not the same body authorize a suspension of all laws by the same means and by the same process? Would it not be, if they are correct, that the Sunday laws may be thus set aside by vote of a given territory. If not, why not? Why should not laws against bawdy houses, adultery, fornication, rape, seduction and incest be suspended by the same local option process? Is not the principle the same? If the popular idea can suspend this tax law by such election, it is certainly very far reaching in its destructive results upon our entire system of government.

There is another matter that I feel that I should mention; that is, the remarks or criticism of my brethren of the Supreme Court as manifested in their opinion in the instant case. They criticise that august tribunal for their recent opinion in Ex parte Mitchell. That the Court of Criminal Appeals and the Supreme Court may differ on any legal matter as to what the law may or ought to be may here be conceded. The Supreme Court is a court of last resort in final determination of questions of civil law. To decide such questions is an imperative duty and compulsory in its nature and its command. There may occasionally arise a matter where the line of demarcation as to jurisdiction may present itself on closely drawn lines, but this does not often occur nor does it for that reason authorize assumption of superiority over the Supreme Court. This is well understood by the courts as well as the bar and bench of the State. This court has recognized this in two recently decided cases, Ex parte Zacarro, the opinion by Presiding Judge Prendergast,72 Tex. Crim. 214, and Ex parte Mussett, 72 Tex.Crim. Rep., opinion by Judge Harper. The opinions in these two cases were carefully and advisedly written. The same question was involved in both of those cases that was involved in the Mitchell case. The Court of Criminal Appeals, reviewing this matter, dismissed the applications in those cases from the docket of this court and remanded to custody the applicants on the ground expressly stated, that they were civil cases, and the Court of Criminal Appeals was without jurisdiction to entertain or try such cases. I might quote from the decisions but they are easily accessible to the profession, and I will not encumber this dissent with such quotation. In the Zaccaro and Mussett cases the applicants had been fined for contempt for the disobedience of an injunction of the District Court of Tarrant County. This court granted writs in each case, heard arguments and took submission. Upon consultation my brethren decided, and so wrote, that they were civil cases, and dismissed them from our docket, and remanded the parties to custody without prejudice. I believed that this court had jurisdiction, and so wrote, but fully conceded that the Supreme Court had jurisdiction. I agreed fully that that court had full authority to try the cases, and to this view I still adhere. Appellants then resorted to writ of habeas corpus before the Supreme Court, and upon final hearing were discharged from custody by that court, as they ought to have been. In the Ex parte Mitchell case the facts showed Mitchell was enjoined by the District Court of McLennan County, and disobeying the injunction he was fined, and following the decisions of this court in the Zaccaro and Mussett cases applied to the Supreme Court, evidently believing this court was correct in those cases, or at least that they would act in his case as in those cases, because it was only a civil case. The Supreme Court granted the writ and discharged the applicant upon final hearing, holding the pool hall law invalid.

The statement that the Supreme Court alone had jurisdiction because it was a civil matter is sustained by the opinions of Presiding Judge Prendergast and Judge Harper in the Zaccaro and Mussett cases. Viewing these three cases in the light of what has been written by the Court of Criminal Appeals, it seems to me that this court has gotten itself in the attitude of deciding the question both ways, and within a very short period of time without even noticing the two prior decisions. If the Supreme Court only had jurisdiction to try an infraction of an injunction, they had the right to determine necessary questions involved, as a matter of fact and as matter of law. The only question involved in the Mitchell case, as in the other two cases, was disobedience of an injunction wherein all the parties had been enjoined for violating what my brethren have held to be statutes punishing criminally. If the Supreme Court had jurisdiction in the two cases first mentioned, it would follow, as night the day, that they had jurisdiction in the latter, and if the contempt was void for the stated reason in the Mitchell case, it was so in the other cases. If one was a civil case, they were all civil cases, and having acquired jurisdiction, that court had not only the right to determine the validity of the law under which applicant was held, but it was a duty. If they were criminal cases, the Supreme Court was without jurisdiction, and my brethren were wrong in their decision of the Zaccaro and Mussett cases.

I do not care to follow this question any further. I can not agree with my brethren in their proposition that the local option pool hall law is constitutional. I have written beyond my original purpose, and I feel that the opinion is so far-reachingly wrong that I ought to at least enter my protest, and for this reason have written. I might have cited many cases from other States to the effect that the Legislature can not authorize a referendum election on general State laws. This ought to be regarded as self-evident, and further, it is only when the Constitution authorizes such procedure that such local option elections can be justified or held. This is at least true in Texas, by the Constitution and the entire jurisprudence of the State. Our State has a well marked and fully developed line of jurisprudence and law on this question, and it is based on the Constitution of the State, and where the Constitution speaks the legislative body as well as the courts and executive departments must obey. Texas will be controlled by her own Constitution, her own laws and her own jurisprudence, and will not subvert or overturn our jurisprudence and law — organic and settled — because some court in some other State has written contrary to what is our settled jurisprudence. We have not adopted initiative and referendum in Texas as part of our Constitution. The decisions of other States where they have such procedure does not obtain here, nor will the decisions of other States engraft upon Texas such doctrine as initiative and referendum. It can only be done by majority vote of the people of Texas placing it in their Constitution.

For reasons given I respectfully enter my dissent.