A complaint was filed against relator charging that he run a pool room and billiard hall in justice precinct No. 1 of Wilbarger County, Texas, after an election had been legally held and pool rooms and billiard halls prohibited under the provisions of chapter 74 of the Acts of the Thirty-third Legislature. When arrested he sued out a writ of habeas corpus before this court, which was granted and the cause set for hearing on October 8. On that day the cause was ably argued by counsel, and very interesting and thorough briefs have been filed with the papers.
On account of the importance of the questions involved, we have given much study and thought to the propositions involved in the case. The principal question involved in the case is, can the Legislature enact a law which is to become effective in any given territory in the future upon the result of an election therein authorized to be held? The pool room law as enacted is what in legal phraseology is termed a "local option law," and the question to be decided is, can the Legislature enact this character of legislation where there is no specific authority to do so found in the Constitution? The Constitution specifically commands local option laws to be passed in regard to prohibiting the sale of intoxicating liquors, to prohibit stock from running at large, and in some other instances, but there is no command in that instrument requiring the Legislature to enact a local option law in regard to pool rooms and billiard halls, and it is contended that as there is no specific authority granted in that instrument to pass that character of law as regards pool rooms and billiard halls, then no such authority exists in the Legislature to do so.
This is a question about which much has been written, and the decisions of many States are in conflict, and the decisions of our own State are far from satisfactory. Relator cites us to the cases of Swisher v. State, 17 Tex. 441, and Ex parte Farnsworth, 61 Tex.Crim. Rep., 135 S.W. Rep., 535 and 538, as holding that the Legislature is without authority to enact this character of legislation in the absence of express authority so to do being found in the Constitution. We do not think the Farnsworth case, supra, is in point, because the question involved in that case is not the same question here presented. While it may be said to be true that some expressions used in that case would seemingly sustain his contention, yet when the case is analyzed it is found that the questions there presented are not involved in this case. In the Swisher case, supra, however, if we take the language there used in its broadest sense, it would support relator's contention. In the Swisher case, supra (decided in 1856), the Legislature had enacted a
law authorizing an election to be held in each county in Texas to determine whether or not the sale of intoxicating liquors should be permitted or prohibited in such county. Swisher was indicted for retailing liquors without paying the tax levied under prior laws, and he plead the Act in question in bar of such prosecution. His plea was sustained by the trial court, and the court holds that the trial court was in error in so holding, but on account of defective record the appeal was dismissed, and it was unnecessary to pass on any other question. However, in writing the opinion Judge Lipscomb uses the following language: "The question presented is not now of very general interest, as the act, whether constitutional or not, has been repealed. We shall not, therefore, give to it the elaborate investigation that we would otherwise have felt called on to bestow on it." . . .
"The mode in which the Acts of the Legislature are to become laws is distinctly pointed out by our Constitution. After an Act has passed both houses of the Legislature, it must be signed by the Speaker of the House and the President of the Senate. It must then receive the approval of the Governor. It is then a law. But should the Governor veto it and send it back, it can only become law by being passed again by both houses, by a constitutional majority. There is no authority for asking the approval of the voters at the primary elections in the different counties. It only requires the votes of their representatives in a legislative capacity.
"But, besides the fact that the Constitution does not provide for such reference to the voters to give validity to the Acts of the Legislature, we regard it as repugnant to the principles of the representative government formed by our Constitution. Under our Constitution, the principle of law-making is, that laws are made by the people, not directly, but by and through their chosen representatives. By the Act under consideration, this principle is subverted, and the law is proposed to be made at last by the popular vote of the people, leading inevitably to what was intended to be avoided, confusion and great popular excitement in the enactment of laws."
It is thus seen that a decision of the question involved in this case was not necessary to a disposition of the case, and as stated by the learned judge who wrote it, he did not give the question that investigation he would otherwise have felt called upon to give it, and this opinion would be what is termed but obiter dictum. However, had this rule of decision been followed by our Supreme Court, we would feel in a great measure bound by it, but in no instance since its rendition, has the Supreme Court adhered to what is therein stated to be the law, if we take the words used in their broadest sense. The opinion correctly states that this is a representative form of government, and that, while the laws are made by the people, yet they are enacted by and through their chosen representatives. To this principle or rule of law we do not think there has ever been or can ever be any dissent. The fallacy in the opinion, if fallacy there be, is in improperly stating the premises, and in doing so,
the conclusion drawn therefrom would necessarily be erroneous. The opinion is based on the proposition that the law as it left the hands of the Legislature was not a complete enactment — was not a law, but other steps were necessary to be taken before the Act became the law of the land. This is the incorrect premise. The Act as passed by the Legislature was a completed enactment. The law, it is true, may be said to have adopted what is termed the "local option system" in a certain matter of police regulation. The act of accepting or rejecting it in any given territory forms no part of its enactment as a law; this right to vote on its acceptance in any given territory is derived and flows from the law as passed by the Legislature, and whether or not it is ever accepted by the people of any given county in no manner affects the validity of the law. It would still be the law of the State, and might be taken advantage of at any time if the people of any county saw proper to do so. It is a right given by the law, and so long as the law remains on the statute books the right exists.
As said before, if our Supreme Court, since the rendition of the opinion in the Swisher case, had followed it, we would be inclined to do so, but every time since then when the question involved in that case has been before our Supreme Court, while not in specific terms overruling it, yet it has as effectually done so as it is possible to do so without specifically so stating.
In the case of Stanfield v. State, 83 Tex. 317, this same question again came before the Supreme Court. The Legislature had passed a law creating the office of county superintendent of public instruction, authorizing counties to accept or reject its provisions, and if accepted, if later in the wisdom of the Commissioners Court such action was unwise, the county was given the right to abolish the office and reject the provisions of the law. This was a "local option law," and was sustained by the Supreme Court. The only difference in that law and the pool hall law is that in the county superintendent law the accepting or rejecting of it was left to the Commissioners Court of the various counties, while in the pool hall law the accepting or rejecting of it is left to a vote of the people to be affected by its provisions. If the county superintendent law was a complete enactment, then this law would also be. In passing on the case Judge Henry, speaking for the court, says:
"Our Constitution and statutes each provide for the adoption of laws in particular localities according to and dependent upon the expressed will of the people to be affected, and such statuteshave not in every instance been expressly directed by theConstitution. It would be tedious and would serve no useful purpose to undertake here to enumerate all instances of such legislation.
"A city containing 1000 inhabitants or over may by vote of its council accept or reject the general incorporation law of this State for cities and towns. The inhabitants of a town or village may by vote accept or reject the incorporation Act provided for them (Rev. Stats., chap. 11, title 17), and having once incorporated, such towns and villages may by
their own vote abolish the corporation including the offices. . . . When the extended area of this State is considered, as well as the diversity of the pursuits of its inhabitants, and the great differences in population and resources of the different counties, it would be unfortunate if the Legislature did not have the power to enable the different counties to adopt or decline some of the agencies of government according to the exigencies of their situation. And such Acts must be very clearly in contravention of the fundamental law before we shall feel ourselves warranted in so declaring them.
"It was the Legislature, and not the county Commissioners Court, that made the law giving to the court the power (to create) and abolish the office. The court abolished the office in pursuance of a law of the Legislature, but it can not be said that because it exercised that power under the law it made the law itself."
Again, in the case of Johnson v. Martin, 75 Tex. 33, our Supreme Court had the question of the constitutionality of local option laws before them. In that case the court was passing on the constitutionality of what is known as the cotton weighers law, and the court says:
"It is not contended by the appellees in support of the judgment below that the law would have been unconstitutional if it had been mandatory, that is, if it had commanded the Commissioners Court to order the election, but that the law is unconstitutional because it left the expediency of ordering the election to the discretion of the Commissioners Court, thereby delegating to them the legislative power. The position of the appellees is untenable. The law as it stands was enacted by the Legislature in accordance with constitutional forms, and as a law was complete by the legislative enactment. The Commissioners Court have no power to revise or modify the Act in any respect; they merely have the right to put the law in force by having an election — to organize by calling an election for the officer, who is to execute the law as it came from the hands of the Legislature. It might be said that the law is to take effect upon the happening of a subsequent event — that is, the decision of the Commissioners Court that it is necessary in their respective counties. Such discretion to the council boards of subordinate branches or divisions of the government is not unusual, and is not unconstitutional. It is allowed to them, because in matters of local regulation it may be fairly supposed `they are more competent to judge of their needs than a central authority.' The Legislature can not merely propose a law to be adopted by the people; but where there is affirmative legislation its enforcement in counties, districts, or towns, when the law so provides, may be left to the option of such localities. It might not be allowed to submit a general law to the people of the State at large to all the electors. This has been held to be in violation of the Constitution, which gives to the Legislature the exclusive right to make laws. See Cool. Cont. Lim., 145-47. But even this was held to be legitimate in some cases. Smith v. City of Jonesville, 26 Wis. 291, and cases there cited. The privilege of the electors of a district to be affected by a law
to say whether they will accept its provisions, the law giving them the right to accept or reject, is now generally permitted, and regarded as constitutional. People v. Stout, 23 Barb., 338; Dome v. Wilcox, 45 Mo., 458; Bank v. Brown, 26 N.Y. 467; Ex parte Wall, 48 Cal. 279; San Antonio v. Jones, 28 Tex. 19.
"In the last above case cited Chief Justice Moore said: `The Legislature may grant authority as well as give commands, and acts done under its authority are as valid as if done in obedience to its commands. Nor is the statute whose complete execution and application to the subject matter is by its provisions to depend on the assent of some other body, a delegation of legislative power. The discretion goes to the exercise of the power conferred by the law, but not to make the law itself.'"
In both of these cases the Swisher case, reported in 17 Texas and hereinbefore cited, is referred to and while not in terms overruled, yet the court recognized and stated that in the Swisher case the contrary had been held to what they held later in the Stanfield and Johnson v. Martin cases just cited and quoted from, and every case in which our Supreme Court has referred to the Swisher case since its rendition, it has distinguished it and upheld laws containing local option features. We have a number of laws on our statute books that it is left to the option of the people to be affected to decide whether or not they will accept the benefits of the laws, and in no instance since the rendition of the opinion in the Swisher case have such laws been held by our Supreme Court to be unconstitutional. As illustrative of this, we may refer to those provisions of our statutes which authorize a city or town to incorporate and accept the provisions of the chapters relating to cities and towns. In chapter 14, title 22, a town or village containing not less than five hundred inhabitants desiring to accept the provisions of said chapter, twenty residents may file a petition with the county judge, who orders an election at which all qualified voters residing in the territory may vote; if a majority vote in favor of the proposition, the county judge so declares and enters an order of record, when the citizens of the territory become entitled to the benefits of the law. This law, when enacted, was operative in no territory, and became operative only when the people of the territory, by majority vote so decide, as is the case in this pool room law. If the Legislature should say that a village containing five hundred inhabitants could avail themselves of the provisions of chapter 14 by deciding to accept same at an election held to so determine, then they could say where ten people are gathered together they could so decide, if the Legislature had elected to so declare. Again, after cities, towns and villages have accepted by a vote the benefits of the laws relating to those municipalities they are authorized by the law to again vote on the question and relieve themselves from the operation of those provisions of the statute. What more does the pool room law do or say? And after accepting the law relating to cities, towns and villages, the Legislature has provided by law that if they desire to change their form, they may do so and accept in lieu thereof
chapter 15 of title 22 — a commission form of government. When this was enacted by the Legislature it became operative in no specific part of the State, but it was a general law and authorized the citizens to petition the mayor, if incorporated, or the county judge if unincorporated, for an election that they might determine for themselves whether or not they would accept the provisions of the law. Other illustrations might be cited, and these laws have all been upheld by our Supreme Court, and they all left it to the option of the people to be affected to say whether or not they would accept the provisions of the law. Many, without thinking, take the wrong view of the State Constitution. It is true that the Federal government is one of delegated power, and to decide whether or not Congress may enact certain character of legislation, we must look to the Federal Constitution, and if authority and power is not therein granted to Congress to do so, then Congress can not legislate on that matter. But this is not true of a State. All power not delegated to the Federal government, was reserved to the State, and this power is inherent in the people of the State. They can act as they deem best for the public good, and while it is true they must act in the way provided by the State Constitution, we look to that instrument not for grant of authority or power, but only to see if the people have placed therein any inhibition in regard to the matter. The people, in the passage or enactment of laws, in the Constitution have provided that their laws must be passed by their representatives — the Legislature — and they have therein specified the particular mode and method necessary to the passage of law, and a law can be enacted in no other way. This much we think will be conceded by all. But in the passage of a State law, no other limitation is upon the Legislature than that found in the Constitution, and the scope of a law is not prescribed. This is the fallacy of these decisions that hold what is termed local option laws unconstitutional. They proceed upon the theory that the Constitution has prescribed the scope of the law, and that the law to be a complete enactment must go into effect at once and not be made to depend upon any future contingency. This doctrine or rule, at one time, had some adherents and especially the contention that the future contingency must not be determined by an election provided for in the law. But the few who at first adhered to that rule have in the main long since abandoned it. As said by Mr. Freund in his work on Police Power, page 205:
"The most common form of local power of prohibition is that of local option, which is found in about half of the States of the Union. Legislative provision is made for the expression by vote of the wishes of the people (of the county or of a town), whether licenses are to be granted or not, such vote to be repeated periodically or upon the petition of voters.
"In a number of earlier cases the principle of local option was declared unconstitutional as an undue delegation of legislative power by the Legislature to the people. It is not within the scope of this
treatise to discuss the validity of processes of legislation, but it seems clear that where the local power does not merely consist in the ratification of some legislative measure which has been withdrawn from local control and can be altered only by another exercise of State legislative power, but is continuing so that the people of the district can both adopt and afterwards repeal or adopt at any time — that then the delegation is undistinguishable from the immemorial grant of local powers of government. The validity of local option is now generally recognized; and even in the States in which it was formerly held unconstitutional, the position of the courts has been reversed or materially modified."
It is thus seen that Mr. Freund says in a number of earlier cases such laws were held to be unconstitutional, but the validity of such laws is now generally recognized. As supporting the text that the earlier cases held the law unconstitutional, we find the case of Parker v. Commonwealth, 6 Pa. St., 507, but we find this case overruled by the Supreme Court of Pennsylvania in the case of Locke's Appeal, 72 Pa. St., 491, and the right of a State to enact local option laws in matters of police regulation sustained. In Geebrick v. State, 5 Iowa 491, a local option law was held unconstitutional, but this opinion was overruled in Witter v. Forkner, 94 Iowa 1, and the right of a State to enact local option laws sustained. The same may be said of the courts in Indiana. In the case of Maize v. State, 4 Ind. 342, such a law was first held unconstitutional, but that decision was subsequently overruled in the case of Goesch v. State,42 Ind. 547, and so it may be said of every case cited by Mr. Freund which first held such laws unconstitutional — they have all been overruled by later decisions of their own State.
Mr. Black in his work on Constitutional Law says: "A `local option' law is a law framed for the purpose of prohibiting, and severely restricting, the sale of intoxicating liquors, and containing a provision that the several counties, townships, or other divisions of the State, may hold elections to determine by popular vote whether they desire the law to be in force in their limits, and with the further provision that in each case where such election results in favor of the adoption of the law, it shall take effect in the district so voting, but that each district rejecting it shall continue to be governed, in this respect, by the existing laws. In some few cases such laws have been ruled unconstitutional, on the ground that they delegated the power of the Legislature. But the very great preponderance of authority is to the effect that such a statute, if it is a complete enactment in itself, requiring nothing further to give it validity, and depending upon the popular vote for nothing but a determination of the territorial limits of its operation, is a valid exercise of the legislative power. Weil v. Calhoun, 25 Fed., 865; State v. Court of Common Pleas, 36 N.J. Law, 72; State v. Pond, 93 Mo., 606, 6 S.W. Rep., 469; Locke's Appeal, 72 Pa. St., 491; Com. v. Dean, 110 Mass. 357; Village of Gloversville v. Howell, 70 N.Y. 287; Anderson v. Com., 13 Bush., 485; Gordon v. State, 46 Ohio St. 607, 23 N.E. Rep., 63."
Sutherland on Statutory Construction is recognized as one of the ablest and most authoritative text-book writers of this day and time, and in his great work beginning on page 170 says:
"It is now settled that laws, at least of local application, may be imperative or permissive; they may authorize the people of cities, villages, townships, counties, groups of counties, or other limited districts not otherwise defined than for the purposes of such acts, to determine for themselves local questions of police, taxation, or any other matter affecting their local welfare; and the law may be conditioned to carry into effect their determination or option. They have thus been authorized to decide by popular vote and execute their decision to contribute for the building for railroads or other public improvements; to establish or remove a county seat; whether there shall be license or prohibition of the liquor traffic; whether paupers shall be a county or a township charge; whether two municipalities shall be united into one; whether they will have a system of free schools; whether a school district shall be established or dissolved; whether a public library shall be established and maintained; whether domestic animals shall be permitted to run at large. The people locally interested may have the option to accept or reject a municipal charter or amendatory acts, or local police law. * * *
"Such cases as Rice v. Foster, Parker v. Commonwealth, Ex parte Wall, and Maize v. State, are now exceptional, and are simply out of harmony with the law as held throughout the country.
"On the whole it may perhaps be considered a sound conclusion, and I think it is supported by preponderance of authority, that whether an act is general or local the Legislature may in their wisdom take into consideration the wishes of the public, and determine not to impose a law on an unwilling or nonconsenting people. Having the power to make their laws conditional to take effect only on the happening of contingent events, what the events shall be on which the taking effect of an act shall depend is not a judicial question, but wholly and absolutely within the discretion of the Legislature, like the emergency which will induce them to make an act take immediate effect, and that the result of a popular vote is a contingent event within that discretion. * * *
"It is common for the Legislature to pass general laws, applicable to the whole State, with a provision that they shall operate only in such localities as shall adopt them by popular vote or otherwise. Such provisions for the operation of the act are valid and do not constitute a delegation of legislative power."
As sustaining this text he cites in addition to the cases above cited Boyd v. Bryant, 35 Ark. 69; In re Petition of Cleveland, 52 N.J. Law, 188; Adams v. Beloit, 105 Wis. 363; Martin v. People, 87 Ill. 524; Shreve v. Cicero, 129 Ill. 226; Caldwell v. Barrett, 73 Ga. 604; Hammond v. Haines, 25 Md. 541; Com. v. Weller, 14 Bush., 218; State v. Cooke, 24 Minn. 247; Fell v. State, 42 Md. 71; Schulherr v. Bordaux, 64 Miss. 59; Com. v. Bennett, 108 Mass. 27; State v. Wilcox, 42 Conn. 364; Barnes v. Supervisors, 51 Miss. 305; State v. Forkner, 94 Iowa 1; State v. Pond, 93 Mo., 606, and other cases which will be found in the notes to the texts. As some of these cases express it, it was the law that authorized the vote to be taken, and when taken the law, and not the vote declared the result, that should follow the vote. The vote was the means provided to ascertain the will of the people, not as to the passage of the law, but whether the thing provided in the law should be prohibited in their midst. The vote sprang from the law, and not the law from the vote. By their vote the electors declared no consequences, prescribed no penalties, and exercised no legislative functions. The law declared the consequences, and whatever they may be they are exclusively the result of the legislative will.
Mr. Cooley, who is recognized as one of the ablest writers on Constitutional Law of our day, says in his work on Constitutional Limitations:
"One of the settled maxims in constitutional law is, that the power conferred upon the Legislature to make laws can not be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted can not relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.
"But it is not always essential that a legislative act should be a completed statute which must in any event take effect as law, at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event. Affirmative legislation may in some cases be adopted, of which the parties interested are at liberty to avail themselves or not at their option. In these cases the legislative act is regarded as complete when it has passed through the constitutional formalities necessary to perfected legislation, notwithstanding its actually going into operation as law may depend upon its subsequent acceptance. * * *
"Such laws are known, in common parlance, as local option laws. They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary power of the municipalities to make by-laws and ordinances, is nevertheless within the class of police regulations, in respect to which it is proper that the local judgment should control." He cites as sustaining his text the following cases: Commonwealth v. Bennett,108 Mass. 27; Commonwealth v. Dean, 110 Mass. 357; Commonwealth v. Fredericks, 119 Mass. 199; Bancroft v. Dumas, 21 Vt. 456; Slinger v. Henneman, 38 Wis. 504; Erlinger v. Boneau, 51 Ill. 94
; Gunnarssohn v. Sterling, 92 Ill. 569; State v. Morris County, 36 N.J. 72, 13 Am. Rep., 422; State v. Circuit Court,15 A. 274 (N.J.); State v. Wilcox, 42 Conn. 364, 19 Am. Rep., 536; Fell v. State, 42 Md. 71, 20 Am. Rep., 83; State v. Cooke,24 Minn. 247, 31 Am. Rep., 344; Cain v. Commissioners,86 N.C. 8; Boyd v. Bryant, 35 Ark. 69, 37 Am. Rep., 6; Savage v. Com.,84 Va. 619, 5 S.E. Rep., 565; Caldwell v. Barrett, 73 Ga. 604; Schulherr v. Bordeaux, 64 Miss. 59, 8 So. 201; State v. Pond, 93 Mo., 606, 6 S.W. Rep., 469; Terr v. O'Connor, 5 Dak., 397, 41 N.W. Rep., 746 (Feek v. Bloomingdale, 82 Mich. 393, 47 N.W. Rep., 37, 10 L.R.A., 69). Local option, as applied to the sale of liquors, has also been sustained in Canada. Mayor, etc., v. The Queen, 3 Can. Sup. Ct., 505.
Mr. Joyce, author of standard text-books, including the "Law of Intoxicating Liquors," "Law of Injunctions," etc., on this question, says:
"By local option is meant, in substance, the right of minor political subdivisions of a State to determine for themselves whether the liquor traffic may be carried on within their limits. As in other cases of legislative action in reference thereto, so we find here that, though laws of this character have been the subject of vigorous attack on the ground of their unconstitutionality, yet they have generally been upheld, it being declared that every reasonable intendment is to be resolved in favor of the constitutionality of such a law.
"The objection most frequently raised against these acts is that they operate as a delegation of legislative power. This objection has not, however, met with any favorable consideration from the courts, since it is the action of the Legislature which gives the measure the effect of a law. The vote of the citizens in respect to its adoption is not to be regarded as a legislative act, but simply a determination as to the acceptance of the provisions of that which is already a law. It is the contingency upon which the enactment takes effect.
"Nor are laws to this effect within the inhibition of the constitutional provision as to special, local, or class legislation. Where the act is general in its operation throughout a State, no one subdivision having either greater or less power than another, it is not rendered unconstitutional by the fact that one or more political subdivisions adopt its provisions while others do not." Citing Territory ex rel. McMahon v. O'Connor, 5 Dak., 397; Paul v. Gloucester, 56 N.J. Law, 585, and other cases.
In passing on the question of local option laws, the courts have had before them mainly such laws passed authorizing the prohibition of the liquor traffic. In Texas we have a positive command in the Constitution that the Legislature pass such a law, but it is about the only State in the Union where such a command is found in the Constitution, while in nearly one-half the States laws of that character have been passed and sustained as statutory enactments, notably Missouri, Kentucky, Illinois, Mississippi, Massachusetts, South Dakota, Oregon, Louisiana, Arkansas, Indiana, Ohio, Montana, New Jersey, and many other
States. In none of those States is any express command or authority found in their Constitutions, as in ours. In Pennsylvania, Indiana, Iowa and some of the other States laws of this character were first held to be unconstitutional on the ground that to so provide in the law was a delegation of legislative power, and, of course, if that was a proper construction of the law, then the position would be unassailable. But even in the earlier cases, the courts of a number of States held to the contrary, and promulgated the rule of law that is now recognized as the correct rule of construction, notably Massachusetts, New Hampshire and New Jersey, in the cases of Commonwealth v. Bennett, 108 Mass. 27; Commonwealth v. Dean,110 Mass. 357; State v. Noyes, 10 Foster, 279; State ex rel. Sanford v. Court of Common Pleas, 36 N.J.L. 72. In these and numerous other cases the substance of what has been held to be the law by the great weight of authority is that laws may be absolutely dependent upon no contingency, or they may be subject to such conditions as the Legislature, in its wisdom, may impose. They may take effect only upon the happening of events which are infuturo and uncertain, and among others the voluntary act of the parties upon whom they are designed to operate. They are not the less perfect and complete when passed by the Legislature, though future and contingent events may determine whether or not they shall operate in certain territory. The Legislature may confer a power without desiring to enforce its exercise, and leave the question whether it shall be assumed to be determined by the electors of a particular district. It may command or it may only permit, and in the latter case as in the former its acts have the efficacy of laws. The true distinction is between the delegation of power to make a law, which necessarily involves a discretion as to what the law shall be, and conferring authority or discretion as to its acceptance and execution to be exercised under and in pursuance of the law. What is known as the pool room law is as complete an enactment and law as is the local option intoxicating liquor law — the only difference is that in one instance there is a command in the Constitution that such a law be enacted, while in the other instance the Constitution is silent, but silence on the subject in the Constitution is no inhibition, and to deprive the Legislature of the power to enact this character of law, there must be a positive inhibition. When we were but colonies and part of the English empire, then it was that all power flowed from the King — he was sovereign, and the people had no rights except such as might be granted them by the king, or by Parliament with the consent of the king, and these could be taken away from the people of the realm whenever the king and Parliament so decided and declared. But not so in this country. Our rights do not flow from the president, the governor, or any other governmental agency. Sovereignty abides in the people — there all power is vested, and from this source all authority must in its incipiency flow. While the government was divided into three great departments, the executive, legislative and judicial, yet the power and authority of each has its origin in the sovereigns of the soil — the people
of the State. The power and authority vested or confided in the legislative branch is the broadest and most comprehensive in its scope of either the three. The Legislature is the direct representative of sovereignty in the enactment of laws and declaring the policy of the State. No question of more delicacy or importance ever comes before a court of last resort than one which involves the constitutionality of an Act passed in due form by the legislative department of the government. With the policy of the law, the wisdom, or want of it, in its enactment, we have no concern; that belongs to the domain of the Legislature. Our business is to declare what is the law, and not to make law. When the constitutionality of a law is assailed, before we can assume to declare it void, and thus erase it from the statute books, "Its invalidity must be made plainly to appear." When courts are called upon to pronounce upon the invalidity of an Act of the Legislature, passed with all the forms and ceremonies requisite to give it force, they approach the question with great caution, and never declare a statute void unless, in their judgment, its nullity and invalidity are placed beyond a reasonable doubt. No rule of construction is better established, both on principle and authority, than that Acts of the Legislature are presumed to be constitutional until the contrary is clearly shown. The Legislature is peculiarly under the control of the popular will. It is liable to be changed at short intervals by election. Its errors, therefore, can be quickly cured. The courts are more remote from the people. If we by following our doubts, in the absence of clear convictions, shall abridge the authority of the Legislature, there is no remedy for six years. Thus, to whatever extent this court might err in denying the rightful authority of the Legislature, we would chain that authority for a long period to our feet. It is better and safer, therefore, that the judiciary, if err it must, should not err in that direction. If either department of the government must slightly overstep the limits of its constitutional powers, it should be that one whose official life would soonest end. It has the least motive to usurp power not given, and the people can sooner relieve themselves of its mistake. Herein is a sufficient reason that the courts should never strike down a statute unless its conflict with the Constitution is clear. The judiciary ought to accord to the Legislature as much purity of purpose as it would claim for itself, as honest a desire to obey the Constitution, and also a like capacity to judge of its meaning. We have followed this rule, and expect to continue to do so, and we have read and reread the Constitution of this State, and in no provision thereof do we find where the Legislature is inhibited from passing this character of a law. As held now by all the recognized authorities to pass a law to take effect in future upon the happening of a contingency or event is not a delegation of legislative authority or power, and one of those contingent events may be the result of an election to determine whether or not it shall be accepted and its terms enforced in territory in which the Legislature in the law or Act authorized the election to be held. As to whether this is the best policy for a State to adopt it is not our purpose
to say — that belongs to the legislative branch of the government. But our sole function is to decide whether or not the Legislature is inhibited by the Constitution from the passage of this character of legislation in matters of police regulation, for if there is no inhibition in the Constitution, there can be no question of their authority and power to do so, as the representatives of the sovereignty of the soil.
We have to some extent generalized so far, and we will now take up each proposition submitted by relator why he thinks the law unconstitutional.
The first proposition he submits is: "The pool hall statute passed by the Thirty-third Legislature is unconstitutional and void, because it involves a delegation by the Legislature to the voters in counties and subdivisions thereof of the power to suspend a law of the State, and also a delegation of the power to make laws."
If the Act in question delegated authority and power to suspend a law of the State, or to make a law, of course it would be unconstitutional, but it does neither of these things. As hereinbefore shown, the Act itself is the law of the State, passed by the Legislature, in the manner and form pointed out by the Constitution, and was approved by the Governor. The Legislature is specifically authorized by the Constitution to suspend a law, if this Act can be said to suspend any law of the State (article 1, section 28). And if this pool hall law can be held to suspend any law of this State, then it is the Legislature by statutory enactment doing so. However, we do not think it suspends any law of the State, but it is but the latest expression of legislative will in regard to pool halls, and if in conflict with any other law of the State, it would prevail over other prior enactments. Neither does it delegate power to make a law. The Act is the law itself, and through it certain rights and benefits are conferred. The fact that it goes into effect in given territory upon the happening of a future contingency does not vitiate the law. The law remains the same, and can not be changed, altered nor amended in any manner except by another Act of the legislative body. In his brief relator cites us to the case of Parker v. Commonwealth, 6 Pa. St., 507, but as hereinbefore shown the Supreme Court of Pennsylvania overruled that case in Locke's Appeal, 72 Pa., 491. He also refers us to the case of the State v. Fields, 17 Mo., 529, and other Missouri cases, but all these cases were overruled by the Missouri Supreme Court in the case of State v. Pond, 93 Mo., 606; Ex parte Swainn, 96 Mo., 44; State v. Moore, 107 Mo., 78; State v. Wingfield, 115 Mo., 428. Other cases cited by relator are from Indiana, Iowa, New York, and some other States, but by reference to the later decisions of the courts of final resort in those States it will be found that they are no longer the prevailing rule of decisions even in those States, but the courts in their later decisions have conformed to the great weight of authority, and as said by Sutherland in his work on Statutory Construction (p. 172), "Such cases are now exceptional, and are simply out of harmony with the law as generally held throughout the country,"
the true rule being: The Legislature having itself declared what the law shall be when it takes effect, and also upon what contingency it shall take effect, and when that contingency happens it takes effect by force of the legislative will, and is in no sense a delegation of legislative power. After it takes effect upon the happening of the contingency, it is enforced under, by and in acordance with the provisions of the law enacted by the Legislature.
The second, third, and fourth propositions of relator contend that the Act is repugnant to the Fourteenth Amendment to the Constitution of the United States, and section 19 of the Bill of Rights of Texas. This question has so often and uniformly been decided contrary to relator's contention we hardly deem it necessary to discuss this matter. (State v. Lewis, 101 U.S. 22; Hayes v. State, 120 U.S. 68, and opinions of the courts of this State, cited in Harris' Annotated Constitution under section 79 of the Bill of Rights, beginning on page 184.) Such a law applies within the territory where it is adopted without discrimination in favor or against all persons within such territory, and deprives no person of any property.
The contention made under the fifth proposition, that the law is "vague, ambiguous and indefinite," and for that reason is void, needs no citation of authorities, but a mere reference to the Act itself, it being chapter 74 of the Acts of the Thirty-third Legislature. It is definite, certain and specific in its terms. All the other propositions submitted by relator are fully disposed of in the foregoing opinion.
The importance of the question herein discussed has caused us to devote an unusual amount of study, thought and consideration to the question involved. In the beginning of the study of this question the writer of this opinion seriously doubted the constitutionality of the Act — of the right of the Legislature to adopt what is termed "local option statutes," except in those instances where the Constitution of this State specifically commended the enactment of such laws, but after a careful review of the decisions of our own State, the decisions of other States, and the views of the text-writers, we have arrived at the definite conclusion that in matters of local concern and in matters of what is termed police regulations the Legislature has the authority and power to enact laws of this character — to enact a general law applicable to the whole State; its operation in different localities to be dependent upon the will of the people of the different localities as their needs and necessities may require. As said by our Supreme Court in the Stanfield case, supra, "When the extended area of this State is considered, as well as the diversity of the pursuits of the inhabitants, and the great differences in population and resources of the different counties, it would be unfortunate if the Legislature did not have the power to enable the different counties to adopt or decline some agencies of government according to the exigencies of the situation."
We must and do admit that the decisions of our State are not entirely
satisfactory on this question. If we follow the doctrine enunciated in the Swisher case, supra, it would appear that in the adoption of local option measures such legislation should be held to be a delegation of legislative authority and power. In the brief filed by the Attorney-General in that case it is stated that legislation of the character in question had been condemned by a majority of the courts, citing the cases. This was in 1856. When we take the cases there cited and find that they have been overruled in every instance (unless it be one only) by the courts in those States, who upon more mature consideration of the question held the exact reverse that such legislation was not unconstitutional, but within the discretionary power lodged in the legislative branch of the government, those cases should and do have but little weight. In the Swisher case it is stated by the judge who wrote the opinion that because the law had been repealed and was therefore of but little interest, he had not given it that thorough investigation he otherwise would have bestowed upon the question. In the Stanfield and Johnson v. Martin cases, supra, the law had not been repealed, and the Supreme Court gave them doubtless thorough consideration as they were compelled to pass upon the questions involved. As hereinbefore stated, if we had had a clear and definite rule of decision on this question in our courts, we would follow the rule, although the doctrine of stare decisis has but little weight where no property rights are involved, and the only issue involved is the policy of the State. The courts of about all the other States that first announced the rule of law as contended for by relator in this case, and as he contends the Swisher case announces it, have had the courage, when convinced those decisions were erroneous, to overrule them and place themselves in line with the great weight of authority. And the question with us, shall we be bound by the decisions of the court in a case in which the judge announces that he had not given the question "elaborate investigation," or that investigation he would have done if it had been necessary to decide the question, and which decision has been seriously questioned by our Supreme Court in all its later decisions, and if not overruled by the Supreme Court, at least so distinguished and limited that but little is left of it, or shall we look to the great body of the law as written and now understood and promulgated by the great law writers of this day?
The Holy Bible is a book that not one word nor line has been changed, altered or amended since it was inspired by the Supreme Being. But that does not bind us to the construction placed on those words one hundred and two hundred years ago. As civilization has advanced, the people of the world have become more enlightened, a more comprehensive understanding of the plan of salvation announced in that book of books has been obtained. At one time it was contended that the Bible could not stand the test of investigation by the learned scientific thought of the age, but now we know that the better we understand the truths stated in the Bible and the greater scientific knowledge we obtain, the more clear and manifest is the fact that the word as written is the inspired
work of God, given us to enable us to live purer, nobler and better lives. The teachings of the Bible as understood at this day and time are not exactly what they were a hundred years ago. Education, enlightenment and advanced thought have enabled us to more clearly perceive the truth taught therein. The world is not now bound by the construction placed on the language of the Bible a hundred or a thousand years ago, and should we be bound by a construction placed on the Constitution more than half a century ago, even if the wording has not been changed, if the enlightened legal thought of the day is practically unanimous in pronouncing that construction wrong. Should we close our eyes, our ears, refuse to read, think and understand because it was once in the long ago so written, when the courts of all the other States have recognized and appreciated the error, and corrected the mistaken conception insofar as lay in their power. With us it is always a serious question when we come to a place in the law where we can not reconcile the former decisions of our own courts of last resort, when there is a conflict in the law as heretofore announced. We reconcile those differences if we can, but if it can not be done, then we feel impelled to give the question our best thought and study in the light of the law as it is now understood and written, and not declare an Act of the Legislature unconstitutional unless it is clearly so. All the text-books at our command, and from a number of which we have freely quoted, hold the law valid; the courts of last resort of nine-tenths of the States of this Union so hold, and we would feel that we were usurping authority and power conferred upon the legislative branch of the government if we were to hold the law unconstitutional because, perhaps, in our opinion it is not the character of legislation that should be adopted. As said by one of the eminent law writers, "The principle is well established that the power to make laws conferred by the Constitution on a Legislature, can not be delegated by the Legislature to the people of the State, or any portion of them. When a Legislature passes a law, it must pass entirely upon the question of its expediency; and it can not say that a law shall be deemed expedient provided that the people afterwards, by a popular vote, or otherwise, declare it to be expedient. A statute to take effect upon a subsequent event must, when it comes from the hands of the Legislature, be a law in presenti to take effect infuturo. On the question of the expediency of the law the Legislature must exercise its own judgment, definitely and finally. This well established principle has been `the bone of contention' in the courts in many of the different States of the Union in passing upon the constitutionality of what are known as `local option laws.' Some of the earlier decisions held that such were unconstitutional because their operation was made to depend upon the contingency of a popular vote. The leading case upon this point was decided in 1847. That case was followed by the courts of California, Delaware, Indiana, Iowa, Michigan, New York, and some others. It was, however, after an able argument and examination of the course of judicial decision upon the subject, overruled, and in all of those States
the rule has been changed except perhaps in Delaware and California, and in California the cases are in conflict. The great weight of judicial decision now is to the effect that such laws, when general in their application, do not violate the constitutional provision that the power to make laws is vested in the Legislature. The constitutional objection to such a law is met, if the Act, when it came from the Legislature, received the Governor's approval, was properly published, and was, of itself, a complete and perfect enactment. In such case the popular will is expressed under and by virtue of a law that is in force and effect, and the people neither make nor repeal it. By this vote, petition or remonstrance, as the case may be, they only determine whether a certain thing shall be done under the law, and not whether the law shall take effect. The law has full and absolute vitality when it passes the Legislature; and the people, under the rule of action therein given for their government, proceed to act. The same rule — the same law — is given to all the people of the State, to all parts of it; the same method for obtaining the expression of the people maintains throughout the State." For a long list of authorities holding such Acts not unconstitutional see notes one and eight to case of Chicago R.R. Co. v. Greer, 114 American State Rep., 313, pages 317 and 324. From an inspection of the authorities there cited it will be seen that there is now almost perfect unanimity of opinion in holding such Acts constitutional.
We have written perhaps too much at length, but it is the most important question we have had to consider for a great length of time. It has been urged that if the law is sustained the principle of local option may be applied by the Legislature to our Sunday laws, our gaming laws and other police regulations. This is true. But the wisdom of the law is for the Legislature and not for us. All we decide is, does the Constitution inhibit the Legislature from passing this character of law, and having held that it does not do so, the Legislature can apply it as they deem proper and for the best interest of the State. Should they wrongfully apply it, their Acts will be subject to control by the people of the State every two years, and their Acts, within the limits of their authority, are not subject to our control.
Being of the opinion that the law is not unconstitutional, the relator is remanded.
Relator remanded.