Ex Parte Meyer

Section 20, article 16, of the 1876 Constitution was:

"The Legislature shall, at its first session, enact a law whereby the qualified voters of any county, justice's precinct, town or city, by a majority vote, from time to time, may determine whether the sale of intoxicating liquors shall be prohibited within the prescribed limits."

The 1891 amendment merely added these words in parenthesis: "(or such subdivisions of a county as may be designated by the Commissioners Court of said county)," after the word city.

In his original opinion Judge Morrow says the question of whether this section deprived the Legislature of the police power to enact the Statewide prohibition law, "has never been before the courts." In this he is mistaken, as I have shown in my original dissenting opinion herein. It was expressly held in Bell v. State, 28 Texas Crim. App., 96, and other cases, that said section did not deprive the Legislature of said power. But as he so asserts, I will discuss said section itself, and from that standpoint, to see if it had that effect.

The saloons are the only mediums in this country now (and have always been), by which intoxicating liquors are dealt out and sold as a beverage. The breweries (pro-German institutions), distilleries and wholesale liquor dealers are only the sources from which saloons stock up.

The tremendous evil effects of the liquor traffic — saloons — as told by the United States Supreme Court, and every State court and text writer, and by everybody else, in this country, as briefly stated in my original dissent, makes it so imperative that the Legislature shall have the police power to deal with and prohibit the sale of such liquors, that no provision of the Constitution should be held to deprive the Legislature of that power unless it be clear and explicit to that effect, and that the intention of the constitutional convention and people could not otherwise be construed.

There is nothing whatever in said section 20 which expressly forbade or prohibited the Legislature from enacting a perfectly valid statute prohibiting the sale of such liquors "all over the State" — Statewide. By no torturing of the language or words of said section can it be held to expressly forbid or prohibit the Legislature from exercising said police power.

If it had been so intended, the constitutional convention would have said so in plain and unmistakable language in said section itself, by adding thereto some such language as this: "The sale of such liquors shall not otherwise be prohibited by the Legislature"; or: "The Legislature shall not otherwise prohibit the sale of such liquors"; or by some other language more, or equally, as explicit. By not thus, or in some other explicit way, so prohibiting the Legislature, it is certain that the convention and people did not intend to deprive the Legislature of such an important and necessary police power.

Instead of that section depriving the Legislature of that police power, on the contrary, the Constitution expressly (if need be), conferred that power on the Legislature.

For section 1, article 3, of the Constitution provides: "The legislative power of this State shall be vested in a Senate and House of Representatives, which together shall be styled ``The Legislature of the State of Texas.'"

Our Supreme Court, by Judge Brown, said: "``The legislative power of this State' means all the power of the people which may properly be exercised in the formation of laws against which there is no inhibition expressed or implied in the fundamental law." (Brown v. City, etc., 87 Tex. 15.) And: "The Legislature of Texas may exercise any power that could be exercised by a constitutional convention, except wherein the Constitution contains a prohibition expressed or implied." (Id., p. 14.)

Again he said: "When a judge pronounces a law to be contrary to the Constitution, he must be able to put his finger upon the provision of that instrument which prohibits the act, or from which the prohibition necessarily arises." (Harris Co. v. Stewart, 91 Tex. 143.)

This court, by Presiding Judge White, in Holley v. State, 14 Texas Crim. App., 511, discussing the difference between the United States Constitution and that of the States, pointed out, as all courts do, that the United States Constitution "is but a grant of legislative power," and Congress, in passing laws, "can only exercise such authority as is granted"; but that State Constitutions "are only limitations upon the complete power with which otherwise the legislative department of the State was vested in its creation"; then quoting from Judge Cooley, said: "The law-making power of the State recognizes no restraints and is bound by none, except such as are imposed by the Constitution. . . . Its object is not to grant legislative power, but to confine and restrain it. Without the constitutional limitations, the power to make laws would be absolute. These limitations are created and imposed by express words, or arise by necessary implications."

These principles are absolutely true by our form of government and Constitution, whether any court ever so held or not.

One of the fundamental rules in construing a constitutional provision is this: "The court should look to the history of the times, and examine the state of things existing when the Constitution was framed and adopted, with a view to ascertaining its objects and purposes. It should consider, for example, the former law, the mischief and the remedy intended to be provided." (12 Corpus Juris, p. 710.) (See the authorities cited.)

Again, as held by our Supreme Court in Cox v. Robison, 105 Texas, 426: "The fundamental rule for the government of courts in the interpretation or construction of a Constitution is to give effect to the intent of the people who adopted it. The meaning ofa Constitution is fixed when it is adopted, and it is notdifferent at any subsequent time when a court has occasion topass upon it." (Italics mine.)

Applying these rules, we find: That section 48, article 12, of the 1869 Constitution, which went into effect in 1870, provided: "The Legislature may prohibit the sale of intoxicating or spirituous liquors in the immediate vicinity of any college or seminary of learning; provided said college or seminary be located other than at a county seat or at the State capital." (Harris' Constitution, p. 747.)

After this provision went into effect the Legislature, at every session, was besieged for the passage of special laws prohibiting the sale of such liquors in the vicinity of every college or seminary in this State. I have not made a careful search for these special laws passed from 1870 to 1875, the time it was in effect, but in the hurried examination I have made I find special laws prohibiting the sale of such liquors at 169 places in different localities all over the State. In 1870 the first session of the Legislature, after said provision went into effect, there were such special laws for twelve different places. From year to year thereafter the number increased, so that in 1875, the last year that provision was in effect, such special laws were passed for sixty-one different places in the State, scattered all over it. In fact, prior to the Constitution of 1876, the greater bulk of the acts passed by the Legislature, for that and other purposes, were special laws. Up to that time there was no constitutional provision prohibiting or preventing the passage of special laws. The Constitution of 1876, in order to remedy this evil, inserted many provisions in the Constitution preventing and prohibiting the passage of special laws by the Legislature.

Of course, the people and their delegates to the constitutional convention of 1875, knew of all this condition of affairs, and they wanted and intended to remedy it. They did so, as to the sale of liquors, by placing said section 20 in the Constitution of 1876, instead of said section 48 in that of 1869.

Thereby these objects, purposes and intentions by them were attained: 1. They prevented the time of the Legislature from being taken up and the expense to the State, in the passage and publication of all these special laws. 2. They permitted the people of the several counties and stated subdivisions thereof, to determine for themselves, by vote, they wanted prohibition "within the prescribed limits," instead of by special laws restricting prohibition to "the immediate vicinity of any college or seminary" only. The people of many counties or subdivisions thereof wanted the liquor traffic prohibited within their limits, whether they had a college or seminary therein or not, and even if it included a county seat or the capital. 3. It prevented fights for and against such special laws being made before the local representative and senator and Legislature itself from the territory of such schools of learning. 4. As our Supreme Court in 1856 had held (Swisher case, 17 Tex. 441), that the Legislature could not pass a statute, and "refer it to the voters for their ratification before it became a law," because such manner of enacting a law was not authorized by the then Constitution, the people wanted, and intended, that the effect of that decision should not stand in the way of the people in the several counties and subdivisions thereof, as to their several localities merely, from legally voting that the sale of such liquors "should be prohibited within their prescribed limits." Hence by said section 20, they commanded the Legislature to pass a law to provide for elections in such localities. Thereby avoiding expressly the effect of said decision, and expressly legalizing such elections for such localities only.

It is so certain that said section 20 did not expressly prevent or prohibit the Legislature from enacting said Statewide law, and did not deny the Legislature the police power to do so, a further discussion of that question is unnecessary.

My associates do not contend — and no one does, so far as I know — that said section expressly so provided; but they contend, and hold, in substance and effect, that it does so alone by implication. And they do not get this implication from said section itself, but drew it from certain decisions of this court, rendered at different times long after the Constitution of 1876 had been adopted. They are cited and quoted from by Judge Morrow in his original opinion. They thus attempt to make said section 20 so do by implication. I so understand their opinion. However, it speaks for itself.

I will, therefore, now discuss that question — whether said section 20 by implication denied to the Legislature, and prohibited it from exercising, said police power, and will also notice the decisions they rely upon for that effect.

Undoubtedly, the true principle is what our Supreme Court, in Cox v. Robinson, supra, said:

"The meaning of a Constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass on it."

Chief Justice Stayton, for our Supreme Court in Lytle v. Halff,75 Tex. 132, said: "It has frequently been said that an act of the State Legislature must be held valid unless some superior law in express terms or by necessary implication forbade its passage.

"A prohibition of the exercise of a power can not be said to be necessarily implied, unless looking to the language and purpose of the Constitution it is evident that without such implication the will of the people, as illustrated by a careful consideration of all its provisions, can not be given effect."

In Imperial, etc., v. Jayne, 104 Tex. 411, Judge Dibrell, quoting from Judge Stayton in Smisson v. State, 71 Tex. 233, said: "A power clearly degislative in its character, not absolutely denied to the Legislature, is not to be held denied by implication unless its exercise would interfere with, frustrate or to some extent defeat the exercise of a power expressly granted."

"The power of a State Legislature is subject not only to express, but also to implied, limitations contained in the State Constitution. Such limitations on the power of the Legislature, however, will not be raised by implication unless this intentionclearly appears from the instrument itself." (12 C.J., p. 750.)

Let's consider and analyze section 20 of and within itself. It was only a clear command to the Legislature to enact a law. What law? To license the sale of liquor? No. To remove all license from the saloon-keeper? No. To turn the liquor traffic loose from all regulations and restraints? No. The Legislature was commanded to pass no law whereby the voters of any territory could possibly do any of those things.

But the law the Legislature was commanded to pass was merely to permit the voters in a county or certain subdivisions thereof to do one certain thing only. What were the voters to be authorized to do? Enact any law? No. Adopt any law? No. What then? Only and merely that they, by vote, "may determine that the sale of intoxicating liquors shall be prohibited within the limits" of such county or subdivisions thereof. Simply that and nothing more. After they so "determined" that one thing and that only, it was the duty of the Legislature to pass any and all laws necessary to enforce their "determination" — prohibit the sale of such liquors in such voters' local "prescribed limits."

The above questions and answers may be "primer" method, but I think they are pertinent to illustrate and determine what was meant and intended by said section.

The Commissioners Court could not enact any law for their county, making it an offense to sell, and prescribing a punishment therefor; nor could the justice of the peace have so done for his precinct; nor could the mayor and city council of any town or city have so done for their town or city, nor could the people themselves have done so. They were all powerless to so do. No other body whatever except the Legislature could enact such a law.

The Legislature, therefore, at no time and in no way passed any law making it an offense to sell liquor in any county or subdivision thereof, fixing the punishment therefor, and submitted such law to the voters for them to enact, adopt or reject. And the voters of no county or subdivision ever at any election voted to enact, adopt or reject, nor for or against any such law.

But the Legislature, in strict compliance with said section 20, at its first session, did enact a law (Act approved June 24, 1876, p. 26, 8 Gammel's Laws, p. 862) whereby the voters of any county or said subdivisions thereof, were authorized to hold elections within their limits, and to vote "For prohibition" or "Against prohibition," as they desired. And if a majority voted "For prohibition" the Commissioners Court were required to enter an order so declaring and prohibiting such sale within such limits, publish such order, etc. Section 5 then declared that when all these things had been done, and if thereafter, "any person shall, within such bounds, sell any intoxicating liquor he shall be fined not less than $25 nor more than $200."

This Act nowhere and in no way submitted the offense prescribed and the punishment therefor to the voters, and they did not vote for or against it, and were never authorized in any way so to do.

Our Supreme Court in Ex parte Dupree, 101 Tex. 155, through Judge Brown, truly and correctly held what said section meant in this regard, saying: "The Constitution does not require the Legislature to submit to the vote of the people the law which is necessary to enforce prohibition, and it has not been done; that is a proper subject for legislative action." And in reply to the contention of the appellant to the contrary, said further: "The objection that the law under investigation goes beyond the limits prescribed by the Constitution is based upon the idea that the people of the particular locality vote upon and adopt the local option law itself, whereas by the plain and unmistakable terms of the Constitution the Legislature is required simply to enact a law by which the people of the territory or subdivision may vote upon the question of whether the sale of intoxicating liquors shall be prohibited within that territory. The Legislature could have enacted the law simply submitting this question to the vote of the people and subsequently have enacted the law which they did in order to carry the result of that vote into effect; or the Legislature might have, as they did, enacted a general law upon the subject with a provision that it should become operative in any of the subdivisions named in the Constitution when the people had voted in favor of prohibiting the sale of intoxicating liquors within that subdivision." This holding was reiterated in substance and effect in Dupree v. State, 102 Tex. 460.

In Fitch v. State, 58 Tex.Crim. Rep., this court cited said Dupree case and followed it. The Dupree case is absolutely correct and has ever since its rendition been followed by this court in the Lewis case and a large number of other cases. The Dawson case, 25 Texas Crim. App., 670, and the Lewis case,58 Tex. Crim. 351, were urged as in point and conclusive against what was held in the Fitch case, but Judge McCord, who wrote that opinion for the court, said:

"However, in none of these cases is the contention made or is it announced that after the people have adopted local option, the Legislature is denied the right to pass all needful legislation to make effective the law that has been adopted by the people; and when the people adopt local option they not only have a right to make the demand upon the Legislature, but the obligation is binding upon the Legislature under the Constitution of the State to see that all necessary legislation is enacted to make successfully effective the enforcement of the law in the prohibited territory. Section 20 of article 16 of the Constitution directs the Legislature to pass laws whereby the people from time to time may determine whether the sale of intoxicating liquor shall be prohibited within the prescribed limits. Under this constitutional provision, unless there are some restrictions growing out of the local option law, as adopted by the people, which may be construed as a part of the law itself, the power of the Legislature to enact all suitable and necessary laws for the enforcement of the will of the people on the subject of local option, is not in the least interfered with or limited; nor does it require or authorize the Legislature to submit to the voters the law which may thereafter be enacted to enforce prohibition. The same would be within the power of the Legislature to enact and it would become immaterial that the Act was not the law at the time local option was adopted. . . . The Legislature could have enacted a law simply submitting to the people the question of whether they would have local option or not, and subsequently have enacted a law defining offenses in order to carry the result of the vote of the people into effect. See Ex parte Dupree,101 Tex. 150, 105 S.W. Rep., 493. And if the only crime that had been defined by the Legislature at the time that matter was submitted to the people, was simply a sale with the penalty attached to it, and the people voted on the law with that offense defined, this would not take away from the Legislature the right to define new offenses within the prohibited territory. All legislative power is vested in the Legislature and can not be exercised by any other body, except as provided by the Constitution. We, therefore, hold that the power to legislate for the efficient enforcement of local option laws is not taken away from the Legislature after the adoption of local option, . . . and that if new offenses grow out of the violation of this law, that can not be covered by the laws already in existence, the duty and obligation rests upon the Legislature to see that efficient laws are passed to meet each new emergency. If an element should invade local option territory opposed to the enforcement of local option laws and should throw its force against the will of the people and by its craft and cunning devise schemes and means to defeat the purpose of the law and invent a method whereby, through the forms of law, they should evade the crime that had been defined by the Legislature, it would be a monstrous doctrine to hold that the Legislature is powerless to enact legislation defining offenses and prescribing penalties for the new conditions that may arise because the same was not an offense at the time that local option was adopted."

If the convention and people had intended by implication by said section to have denied the Legislature said police power to prohibit it from passing a Statewide prohibition law, they would have included the State as well as the county and subdivisions thereof therein, by having said section read thus: "The Legislature shall, at its first session, enact a law whereby the qualified voters of the whole State, any county," etc., with the remainder of the section as it is. If this had been done then it might, with some show of reason, have been contended that the Constitution by implication forbade the Legislature such police power. But as they did not intend to deny such power they, of course, did not include the State therein.

Then what inhibitions by implication could be drawn against legislative action from said section? The most important were: 1. That the Legislature was deprived of the power, which it formerly had, of itself at its own initiative, or that of the local people at said schools, passing any special law — or even general — prohibiting the sale of such liquors at any given locality where a college or seminary was located, or other given locality only. 2. From passing any law prohibiting such sale in any large or small local portion of the State, other than specified in said section, towit: a single county, justice precinct, town or city; and then even for such locality merely, until and unless such local territory first "determined by a majority vote that the sale of such liquors within such local territory alone, should be prohibited therein." 3. From passing any law whereby the whole State might determine by vote at a State election that they wanted Statewide statutory prohibition.

At least, no other important implications could be drawn therefrom, and, without doubt, no implication could be drawn therefrom whereby the Legislature was inhibited from exercising that said police power which had been expressly conferred by said section 1, article 3, to prohibit the sale of such liquors "all over the State."

I will next briefly discuss the cases cited by Judge Morrow, from which — not the Constitution itself — it is claimed the Legislature by implication was denied the police power to pass the Statewide Act.

He cites and quotes from said Dawson case, 25 Texas Crim. App., 670. Therein it was shown that at a local option election in Erath County for the whole county prohibition carried and was put in force in 1886. That just after one year and within two, a second election was held therein in which prohibition was defeated. The State contended that as the Act of April 1, 1887, page 96, 9 Gammel's Laws, page 894, prohibited a second election within two years from the first, said second election was void and prohibition was still in force. The court held that as said Act of June 24th, supra, authorized a second election just after one year, the Legislature could not change that law to two years, and that said second election was valid, under the mistaken idea and statement that the voters voted to adopt, and by vote didadopt, the law as it was when the first election was held.

Another case he cites is the said Lewis case. Therein it was shown that at a local option election in 1902 prohibition carried and was put in force in Hill County. The law at that time made it a misdemeanor only to sell in prohibition territory. Before the offense therein was committed, the law was changed by the Act of April 24, 1899, page 396, so as to make it a felony instead of a misdemeanor to violate the prohibition law. Judge Ramsey attempted to uphold the error in the Dawson case by the staredecisis doctrine, and following the Dawson case, held that as the offense was a misdemeanor when prohibition was first put in force the Legislature could not so amend the law as to make it a felony under said election.

The stare decisis doctrine has little or no application to criminal law, and especially it has none to the construction of any constitutional provision.

In the Wagner case, 53 Tex.Crim. Rep., this court, by Judge Ramsey himself overruled several of the decisions wherein it had held a certain character of evidence in a prohibition case was inadmissible, and therein held it was admissible. In a motion for rehearing his decision was vigorously attacked, and, in effect, the stare decisis doctrine invoked. Judge Ramsey after conceding his decision was contrary to previous decisions said: "It was written (the opinion therein) with full knowledge of what had heretofore been held by this court, but represented the best thought and the deliberate convictions of the court. . . . It was based on what occurs to us such conclusive reasons, and upon principles so obvious and evident, that we felt that the law should be so written and declared. We then thought, as we now think, that no defendant had the conclusive right to shield himself from wrongdoing under the former holding of this or any other court. There can be, as we believe, no such thing as a vested right to commit crime, and when we reached the conclusion that the interest of society, the due enforcement of law, its proper interpretation, and the good of the commonwealth require that a rule should be written more in consonance with reason and more in accord, as we conceive, with common sense and logic, it was so written in the opinion deliberately, and with due consideration of all there was implied in it."

In Willis v. Owens, 43 Tex. 48, the constitutionality of an Act of the Legislature, in at least four, if not more, cases, and for quite a number of years, had been upheld by that court. In that case the question was again raised, and the doctrine ofstare decisis invoked. The court, by Judge Moore, held: "We can not, however, regard the rule of stare decisis as having any just application to questions of the character involved in these cases. This doctrine grows out of the necessity for a uniform and settled rule of property, and definite basis for contract and business transactions. If a decision is wrong it is only when it has been so long the rule of action, as that time and its continued application as the rule of right between parties demands the sanction of its error. Because, when a decision has been recognized as the law of property, and conflicting demands have been adjusted, and contracts have been made with reference to and on faith of it, greater injustice would be done to individuals, and more injury result to society by a reversal of such decision, though erroneous, than to follow and observe it. But when a decision is not of this character, upon no sound principle do we feel at liberty to perpetuate as error, into which either our predecessors or ourselves may have unadvisedly fallen, merely upon the ground of such erroneous decision having been previously rendered.

"The questions to be considered in these cases have no application whatever to the title or transfer of property, or to matters of contract. They involve the construction and interpretation of the organic law, and present for consideration the structure of the government, the limitations upon legislative and executive power, as safeguards against tyranny and oppression. Certainly it can not be seriously insisted, that questions of this character can be disposed of by the doctrine of stare decisis." Said previous decisions were overruled and the Act held unconstitutional.

In Higgins v. Bordages, 88 Tex. 466, it was shown that many years before the Constitution had been construed and held as having a certain effect in the case of Lufkin v. Galveston,58 Tex. 545. The question was again raised in this Higgins case and said Lufkin decision was overruled. The stare decisis doctrine was again invoked. That court by Judge Brown cited, quoted and approved said decision in the Willis case.

In the Cline case, 36 Tex.Crim. Rep., Judge Davidson said: "The rule of stare decisis has but little application in criminal jurisprudence, and ought to have none, when wrong, and tending to overturn the plainly written law (Constitution). May it not be said correctly, in criminal law, in this connection, that adjudicated error, persisted in, can not make truth of that error. Can any question truthfully be said to be settled until it has been correctly settled. Courts may declare it settled, but these rulings will be questioned and assailed until they are overturned, and the truth is made to prevail. This is right, and it should be so."

Other decisions are cited by Judge Morrow to the effect that when the prohibition law is put in force in a given territory by a vote at a local option election, it can be vacated or set aside only by a vote of the voters of the same territory.

None of these decisions can rightfully or legally be held to engraft on said section a denial by implication, of said police power to the Legislature. But if they could, they are but judgemade law, not by a constitutional convention nor by the people.

A great constitutional lawyer, Judge Wannemaker of the Supreme Court of Ohio, has truly said: "Judge made law is bad enough, butjudge made constitutions are infinitely worse." He might appropriately have further said that "judge made constitutions are detestable and abhorrent." The people and the constitutional conventions have no voice in judge made constitutions. Such a constitution is "We, the Judges," enact it. It is not done by "We, the people," nor by "We, their representatives," in convention assembled.

Ever since local option was provided for by said section the people and their representatives, the Legislature, have always had great trouble in having prohibition enforced. Their laws, duly and constitutionally enacted by the Legislature and approved by the Governor have frequently been declared invalid and void by the Court of Criminal Appeals of Texas, often by two members only, which really, in effect, is by one member alone — one upholding the law, another against it, and then the other one judge deciding the question. Therefore the question always before the Legislature, in enacting laws to enforce prohibition, has been, not is the law valid, but will the Court of Criminal Appeals by a majority of one member, as in this instance as to Statewide, strike down the law — kill it? Or, will two of the judges let it stand? The Constitution should require the concurrence of all three judges to strike down and kill any law duly enacted by the Legislature.

By said section 20 it was just as imperative upon the Legislature to pass a law to provide for a prohibition election for any justice's precinct, town or city, as it was to provide for an election by the whole county. It nowhere, and in no way, prescribed that if an election was held in a whole county and prohibition carried that no election could thereafter be held for a justice's precinct, town or city therein while the whole county was still under prohibition. Precisely the same language that commanded a law for an election for the whole county, also commanded one for a justice's precinct, town or city therein. The Legislature, in compliance with said section, as stated, passed said Act of June 24, 1876, supra, and provided for elections in the precincts, towns and cities as well as for the whole county.

In the Whisenhunt case, 18 Texas Crim. App., 494, it was shown that in 1883 the whole county of Hood had a local option election at which prohibition carried and the law was put in force in the whole county. The next year, while prohibition was still in force in the whole county, precinct No. 1, in that county, had an election for that precinct alone at which prohibition was defeated therein. This court, by Judge White, held that the defeat of prohibition in said precinct fully and completely repealed the prohibition law in that precinct, and that no prosecution for a violation of said law in said precinct could be maintained, saying: "One of the primary intentions was to give to justice's precincts, cities and towns in a county the same right from time to time to test the matter by election as a county should have." And again: "In a word, the enumerated subdivisions, recognized both in the Constitution and the law, were vested with the same rights as counties, provided they might desire to exercise and enforce such rights independently of county action. To say they can not have it independently of the rest of the inhabitants of the county would be to nullify what every one must concede is the plain intention and provision of the law."

Precisely the same holding was had in the Woodlief case, 21 Texas Crim. App., 412, and such was stated to be the law in the Ladwig case, 40 Tex.Crim. Rep., at the time said decisions were rendered. (See, also, Ex parte Pollard, 51 Tex. Crim. 490. )

Therefore, by the said Act of April 1, to avoid said decisions said Act of June 24 was amended, whereby it was enacted "when prohibition has been carried at an election ordered for the entire county no election on the question of prohibition shall be thereafter ordered in any justice's precinct, town or city of said county until prohibition has been defeated at a subsequent election for the same purpose ordered held for the entire county. . . . Nor in any case where prohibition has carried in any justice's precinct shall an election on the question of prohibition be ordered thereafter in any town or city in such precinct until after prohibition has been defeated at a subsequent election ordered held for such entire precinct."

Judge Hurt in Ex parte Fields, 39 Tex.Crim. Rep., said that this provision of the statute of 1887 was enacted because of the opinion in the Whisenhunt case, and said: "It is a very explicit expression of the Legislature's opinion as to the meaning of the Constitution on this subject." Therein he further said: "This question has been before the Court of Civil Appeals in three cases (Kimberly v. Morris, 10 Texas Civ. App. 592[10 Tex. Civ. App. 592], 31 S.W. Rep., 809; State v. Harvey, 11 Texas Civ. App. 691[11 Tex. Civ. App. 691], 33 S.W. Rep., 885; Adams v. Kelly, 17 Texas Civ. App. 479[17 Tex. Civ. App. 479], 44 S.W. Rep., 529), and the same conclusion reached. The last opinion was rendered by Judge Stephens and cites us to several cases, and we think the question is forever put at rest." The question decided was: That no subdivision of a county could have a local option election after prohibition had carried in the whole county, because the said Act of 1887 so provided.

In the Raby case, 42 Tex.Crim. Rep., it was shown that precinct No. 4 of Bosque County had a prohibition election for that precinct alone, that prohibition carried and the law was duly put in force therein. Thereafter a prohibition election was held for the whole of Bosque County at which prohibition carried and the law was put in force in the entire county. Raby was prosecuted for selling liquor in that precinct under the precinct election, convicted and appealed. This court held that when prohibition was carried and put in force for the whole county "it absorbed the precincts of the county where local option formerly existed, the law being merged into a county local option law, so that the offense occurring in the precinct territory is no longer an offense against the precinct law, that having been obliterated, but it is an offense against the county local option law which alone exists in the territory."

Again, in Garrett v. State, 61 Tex.Crim. Rep., it was shown that several precincts of Clay County prior to the amendment in 1909, making it a felony to sell liquor in prohibition territory, had voted for prohibition and the misdemeanor prohibition law duly put in effect therein. That after said felony statute was in effect an election was held for the whole county and prohibition carried and was put in force in the whole county. After this Garrett made a sale of liquor in one of said precincts and was prosecuted and convicted. He contended that as the precinct law had never been repealed he could only be convicted of a misdemeanor. This court held that prohibition "in the whole county superseded and set aside the law in any of the precincts therein where prohibition had previously been carried and put in force," citing and quoting the Raby case. The same thing was held in substance in the Mayo case, 62 Tex. Crim. 112.

The clear effect of said statute of 1887, and of these decisions construing said section 20, was, that notwithstanding the Constitution gave to the precincts, cities and towns the same right as it did to the county to hold local option elections and carry or defeat prohibition therein, yet that when the larger body — the county — voted for prohibition and the law was put in force therein, that said minor subdivisions of it had to give way. As expressed in the decisions, prohibition having carried in the whole county absorbed the precincts, towns and cities' rights and merged their rights into that of the county If that be the law — and it undoubtedly is — then when the Legislature enacted said Statewide law, the rights of the counties and subdivisions thereof were absorbed and merged into that of the State, and wherever they had carried prohibition in such minor territory the prohibition law for the whole State superseded and set aside the law in said minor subdivisions thereof.

Again, said section 20, as stated, required the Legislature to pass a law whereby the voters in the counties and subdivisions thereof might determine that the sale of intoxicating liquors should be prohibited therein Thereafter, when the Legislature enacted prohibition for the whole State the counties and subdivisions thereof had nothing to vote for and had no occasion to vote, and their rights are in no way invaded by said Statewide law. As shown above, they could not vote to license saloons or the liquor traffic, or do anything else other than to vote for prohibition if they wanted it, and when they had it by the Statewide Act they had nothing further for which they could vote.

In Judge Morrow's original opinion herein he sought to apply the well established principle of law to the effect that whenever the Legislature in the revision of its laws readopts a previous statute in the same language in which it was first enacted and the courts had, prior thereto, construed its meaning in a given way, that by re-enacting it, the construction given it by the courts would also be adopted, and he attempted to apply that doctrine to the amendment of said section 20 in 1891. Said doctrine had no application whatever to that amendment because it is plain therefrom what the object and purpose of that amendment was. This court had held that no election in any subdivision of a county for prohibition might be held other than in the three subdivisions mentioned in the original section, towit: justice precincts, towns and cities. The people wanted other subdivisions of the counties to have the same right, and, therefore, for the sole purpose of giving other subdivisions which are mentioned in parenthesis in the amendment, said amendment was submitted and adopted by the people. It could in no sense have been the intention of the people to ratify the various decisions on other matters.

On the contrary, if the people had in mind and intended to sanction and ratify any other construction than about said subdivisions by adopting said amendment, they undoubtedly had in mind and intended to adopt that construction of it given by this court in the Bell case, supra. It is true that Judge Morrow stated that that decision was dictum, and in that way attempted to brush aside and do away with the effect of it.

Of course, any two members of this court, over the earnest opposition of the other, have the power to overrule any previous decision of this court and occasionally, if not frequently, do so. For them to hold any given decision is dictum and refuse to follow and be bound by it, has precisely the same effect as if they should expressly overrule such decision under the theory that it was not law, and for that reason refuse to follow it. That, in effect, was done in this case. Two judges of this court might attempt to make the distinction and declare the decision in the Bell case was dictum, but the common people who vote could and would not make such distinction. There can be no doubt but what the common people, the voters, would have great faith in said decision in the Bell case, even if it was contended by some persons that it was dictum. They must have known that that great lawyer, Judge Hurt, did not indulge in writing dictum opinions. But in saying that such decision by Judge Hurt was dictum, my associates were undoubtedly in error. It was not dictum. It was necessary and proper to the decision of the question that was raised and had to be passed on by the court in deciding the Bell case. That opinion was confined more largely to the decision of that question than the whole of the balance of it to others.

This opinion is already too lengthy. Notwithstanding this, I will encumber it with a copy of Judge Hurt's decision on said question. It is as follows:

"Counsel specifies in what particulars the Act is in violation of the State Constitution, insisting that the Act invades the exclusive power of counties, towns, and justice precincts of prohibiting the sale of intoxicating liquors — such power being conferred on them by section 20, article 16, of the Constitution.

"Evidently the local option provisions of the Constitution do not divest the Legislature of the power to prohibit the sale of such liquors, if the Legislature has such power independently of these provisions. It having been held by the Supreme Court of this State that the Legislature could not transfer to the people of the counties, etc., the authority by election or otherwise to enact local option laws for their counties, etc., because the people of a county, precinct, town or city have no legislative capacity — the power to enact laws being conferred by the Constitution on the Legislature — the local option provision of the Constitution became necessary in order to confer upon the people of the counties the lawmaking power. The object of this provision was not to deprive the Legislature of its power over the subject, but to confer upon the counties and subdivisions thereof constitutional authority to enact a law prohibiting the sale of such liquors within their respective boundaries. Such counties or subdivisions thereof may desire such a law while the others or the rest of the State may not.

"Now, to authorize the counties, etc., to act legally in this matter the provision was engrafted upon our Constitution, the object being to permit the people of the counties, etc., to prohibit the sale of such liquors within their respective limits This, and this alone, was the object of the local option provision.

"But let us view this subject from another standpoint. Under the local option provision the people of a county can not, by an election for that purpose, enact a law prohibiting the sale of such liquors in quantities less than a quart, and permit it to be sold in greater quantities — they must prohibit its sale in all quantities — prohibit its sale absolutely except for certain named purposes. It follows that if the local option provision has deprived the Legislature of the power to prohibit the retail of such liquors — prohibit saloons — then the power to prohibit saloons does not exist in this State. Hence a very important police power is lost, or can not be exercised without absolute prohibition, and that, too, by the tedious and uncertain process of local option. The people of the State might desire the prohibition of saloons, and not absolute prohibition, but we are seriously told they can not have this — that they must take absolute prohibition in order to obtain the suppression of saloons, and this they must receive as doled out to them by the separate action of counties, precincts, cities and towns This is absurd. We will follow this subject but one step further.

"Local option prohibits absolutely in the county of its adoption. Say that this divests the Legislature of the power to prohibit absolutely all over the State (a proposition too preposterous for discussion) may not the Legislature still retain the power to prohibit saloons? Concede that the Legislature, by reason of the local option provision of the Constitution, can not prohibit the sale of such liquors absolutely, may it not still retain the power to prohibit the saloon?

"Now, it is well settled by all the authorities that the Legislature — no constitutional provision forbidding — has the right to absolutely prohibit the saloon business — the retail of intoxicating liquors. If, therefore, the Legislature can prohibit this business absolutely, it follows inevitably that the Legislature can annex to the pursuit of such business just such conditions precedent as it may deem just, unless the citizen has granted to him affirmatively by the Constitution of the United States the right to sell such liquors by retail — to keep a saloon."

I have been materially aided by the able briefs herein of Attorney General Looney and his eminent assistants, Hon. C.M. Cureton and Hon. W A Keeling. Therein they have given many other reasons, and cited many authorities sustaining the validity of said Statewide Act, but this opinion is too lengthy to mention or discuss them.

From no viewpoint is said Act unconstitutional or void. It should not have been so held.

I respectfully dissent.