text:
    PIZANA v. STATE.
    (No. 4404.)
    (Court of Criminal Appeals of Texas.
    March 21, 1917.)
    1. Homicide <@=>30(1) — Self-Defense—Principals.
    As a predicate for a conviction of a coprin-cipal not acting in a homicide case, it must be shown that there was an offense committed, that there was an unlawful killing, and hence there can be no conviction if his coprincipal actually committing the homicide did so in his necessary self-defense.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 48.]
    2. Homicide <§=>305 — Principals — Instruction-Evidence.
    Where the evidence in a prosecution for murder failed to show any conspiracy or that defendant acted with others'or aided and abetted them with any knowledge of a guilty intent, the submission to the jury of the issue of principals was unauthorized.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 637.]
    3. Conspiracy <@=>41 — Degree of Offense— Principals.
    If two or more conspire to do an offense, and it is committed, all present are guilty as principals, and each is responsible for collateral acts growing out of the common design.
    [Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 74.
    For other definitions, see Words and Phrases, First and Second Series, Principal.]
    4. Criminal Law <§=>59(5) — Degree of Offense — Principals—Guilty Knowledge.
    Where there is no conspiracy to commit an offense, yet it is committed by one, and another is present, and knows the intention of the others, and by words or acts aids the persons engaged, he is guilty with them to the extent of his knowledge, or for the reasonable consequence of the acts aided.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 81.]
    5. Homicide <§=>250 — Murder — Sufficiency of Evidence.
    Evidence held not sufficient to support a conviction for murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517.]
    6. Criminal Law <@=>784(1) — Instructions— Circumstantial Evidence.
    In a prosecution for murder, where there was no evidence that defendant actually took part in the homicide, and where the evidence, if any, that he aided or abetted the person committing the homicide was wholly circumstantial, the law of circumstantial evidence should be submitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883, I960.]
    7. Criminal Law <§=>1099(5) — Assignment of Error — Filing of Evidence.
    An assignment with reference to the misconduct of the jury cannot be considered where the evidence heard by the court thereon was not filed until after the end of the term of court at which defendant was tried.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2876.]
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Ramon Pizana was convicted of murder, and he appeals.
    Judgment reversed, and cause remanded.
    Canales & Dancy and Graham, Jones & George, all of Brownsville, and E. C. Gaines, of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is an appeal from a conviction of murder, appellant’s punishment being assessed at 15 years’ confinement in the state penitentiary.

Appellant is a Mexican, or of Mexican descent, but long a resident in Cameron county, Tex. His mother and brother resided on a ranch. Appellant, also resided on a ranch several miles distant from that of his mother. On the occasion of the homicide appellant is shown to have learned that his mother was sick, and to have gone to her residence late in the evening and spent the night. At this ranch were a brother and two grandsons of his mother and two or three other men, besides two other women and several eMldren. Appellant’s brother and the grandsons mentioned lived at the ranch; the others were shown to have been there engaged in work. They were in the habit of carrying guns attached to their saddles in riding. These guns were left upon their saddles at night, which were kept m or near a buggy shed or upon a mesquite tree standing by the buggy shed or house. Besides this buggy shed, there were the main house of three or four rooms, a kitchen and schoolroom and a corral, the last being so constructed that it would obscure the view of persons approaching from a northern direction. The ranch and improvements were situated in a clearing in a country covered with thick growth of cactus, mesquite, and chaparral. At San Benito, a town situated some miles distant, were stationed some United States soldiers. Some 15 or 16 of these under the command of a lieutenant were ordered to go in search of bandits who were supposed to have come into the country. On their way they spent the night at a ranch several miles distant from that belonging to appellant’s mother. At the suggestion of the owner of this ranch the soldiers changed their course, the ranch owner stating to the lieutenant that the route suggested' by him would take him by the ranch owned by appellant’s mother upon which there were some horse and cattle thieves. The soldiers accompanied by several civilians, among them some civil officers, started on their journey the next morning, August 3d, at a very early hour. "McGuire, the man for whose murder appellant was prosecuted, was a soldier on furlough and volunteered to accompany them. They reached the ranch where the homicide took place early in the morning, the civilian party going ahead of the soldiers. The evidence shows that as the party approached the ranch they were on horseback and galloped their horses, making a considerable noise, their view of the men at the ranch being obstructed by the corral. For the same reason the view of the approaching party was hidden from the people at the ranch. The evidence shows that at the time the party arrived the appellant and his mother were in the kitchen, the latter pouring him a cup of coffee. The other men were out working about the corral. The girl was preparing breakfast, and the boy was feeding the hogs, and another girl had gone for water. The party on horseback rode around the end of the corral and saw several men run to a building 50 or 60 yards distant from the corral, and one of the civilians hollowed: “There they are.” There was a conflict in the evidence as to whether the building to which the Mexicans went was the kitchen or the shed where the harness and saddles were kept; those familiar with the place testifying to the latter. The approaching party also saw one of the men with a gun in his hands and ordered him to put it down, and at that moment the firing began, and at the first shot from the ranch party the deceased, McGuire, was killed. The firing was general •both from the parties at the ranch and those approaching it. The boy who had been feeding the hogs was wounded, as also was one of the civilians in the approaching party. The evidence was conflicting as to which party fired first. It is practically without contradiction that the man on the ranch first seen with a gun and the first to fire from the ranch was appellant’s brother, and that his shot killed McGuire. He fired with a rifle. Appellant was shown by persons who were in the approaching party who knew him well not to have been of those who ran from the corral to where the guns and saddles were and from which the shot which killed deceased was fired. The soldiers and party withdrew. All at the ranch left it except appellant, his mother and the wounded boy. When the civilian officers and others returned to the ranch some time after the shooting, they found appellant in the house lying down behind a box or on a box covered with some cover. They searched him and found a small amount of coin and a pocket knife and some 38 cartridges in his pocket. In the same room lying in a box was a 38-cali-ber pistol and scabbard. The pistol was loaded and there was no evidence that it had been fired. There was evidence that there were picked up outside of the house where appellant was found some 38-caliber empty cartridges recently fired. The testimony was to the effect that appellant remained in the kitchen during the entire time of the firing, except that he and the mother of the wounded boy went out and picked the latter up after he fell. There is no dispute but that the shot fired by appellant’s brother was from a different part of the premises than the place where appellant was found and where the testimony shows he remained during the time. There was no evidence that any of the parties on the ranch were bandits or lawbreakers of any description. The evidence was affirmative that appellant bore the reputation of a peaceable law-abiding man.

The court submitted the issues of murder, principals, and self-defense. A request was made by special charge to instruct the jury that, if appellant’s brother killed the deceased, and in doing^ so acted in his own self-defense, appellant should be acquitted. “All persons are principals who are guilty of acting together in the commission of an offense.” P. G. art 74.

Other subdivisions of the chapter of our statute touching the law of principals state the conditions under which one not actually committing the offense, who being present and knowing the unlawful intent aids by acts or encourages by words or gestures those engaged in the unlawful act, or who may assist in its commission, or who may procure an irresponsible person to commit the unlawful act, or who, being present, advises its commission, will be guilty of the offense. P. O. arts. 75-78, inclusive.

As a predicate for a conviction of the eoprincipal not actually acting tn a homicide case, it must be shown that there was an offense committed; that is, that there was an unlawful killing. If in this case appellant’s brother in shooting the deceased acted in his own necessary self-defense, the homicide was not unlawful. There being no offense committed, the appellant, being a co-principal of his brother, could not under such conditions be guilty. This is a fundamental principle of the law of homicide as we understand it. It has been applied in this court in the case of McMahon v. State, 46 Tex. Cr. R. 540, 81 S. W. 296; Cecil v. State, 44 Tex. Cr. R. 450, 72 S. W|. 197; Patton v. State, 62 Tex. Cr. R. 71, 136 S. W. 459; Harper v. State, 83 Miss. 402, 35 South. 572; Blain v. State, 33 Tex. Cr. R. 236, 26 S. W. 63; Benge v. Com. (Ky.) 71 S. W. 648; Jenkins v. State, 69 Tex. Or. R. 5S5, 155 S. W. 208. In Michie on the Law of Homicide, p. 50, it is said that:

“One cannot be convicted for aiding and abetting any homicide where the person actually doing the killing was justified as so doing in self-defense.”

And to the same effect is the test in Wharton on Homicide (3d Ed.) § 47, p. 67, citing Bossie v. Com. (Ky.) 16 S. W. 713; Goins v. State, 46 Ohio St. 457, 21 N. E. 476. We think the jury should have been advised of this rule.

The court charged the jury on the law of principals as follows:

“You are further instructed that all persons are principals who are guilty of acting together in the commission of an offense. When an offense is actually committed by one or more persons, and others are present, and, knowing the unlawful intent, aid by acts, encourage by words or gestures, those actually engaged in the commission of the unlawful act, such persons so aiding or encouraging are principal offenders.”

Objection was made to this charge on the ground that it was without evidence to support it. The evidence is conclusive that appellant did not shoot the deceased. The theory that any conspiracy was formed by the appellant and others which would authorize the submission of the law of principals seems to be negatived by the circumstances. There is an absence of evidence tending to show that appellant or any of the parties at the ranch at the time of the attack by the soldiers and others with them had any information that the soldiers and officers and others would come to the ranch. The evidence is undisputed that at the time the soldiers left San Benito on the- evening before the homicide they had no intention to' go by the place of the homicide, but, on the contrary, intended to go in another direction. This intention was abandoned, and the decision reached to go by the ranch where deceased was killed in the nighttime before the homicide or in the early morning when the journey to this ranch was undertaken. There is no suggestion in the evidence that appellant or those with him had any knowledge either of the original intention mentioned or the subsequent change, but all the testimony goes to show that the first information or knowledge of the presence of the soldiers and those with them was when, as they galloped into the clearing, one of them exclaimed, “There they are,” and demanded of appellant’s brother or the man exhibiting a gun that he put down his gun. Immediately before this time the evidence shows that the persons at the ranch were pursuing their ordinary duties: appellant’s mother was pouring coffee for him; one of the girls was preparing breakfast; another had gone for water; the boy who was shot had gone to feed the hogs or to milk; the men were at work about the crib and corral. The conduct of all of the parties at the ranch immediately before the arrival of the soldiers and those with them indicates that their arrival was wholly unexpected. The evidence fails to show that any one at the ranch prior to that time was charged with any offense. There was no evidence that the soldiers or those with them had any process to serve upon appellant or those with him. There is no evidence that appellant'or those with him were bandits or engaged in any unlawful pursuit. The proof shows without contradiction that appellant was a law-abiding citizen. He was not with his brother at the time when deceased was killed. He had no opportunity to aid or encourage him by words or acts, as the shooting took place immediately upon the arrival of the deceased and those with him. His mother testified without contradiction that he did not shoot, did not go to where his brother was shooting, did not leave the room in which she and he were alone until the milk boy was shot down, when he assisted his mother in picking him up. Appellant did not flee from the scene of the homicide. The evidence shows that the other Mexicans present engaged in the shooting did flee, at least did not remain at the ranch until the officers and soldiers returned, as the appellant did. The evidence, while not conclusive, indicated that the firing was done with rifles. The only evidence that appellant was armed at all was that there was a shotgun in the house which had not been fired, and a pistol which he was accustomed to carry, which was loaded, and not shown to have been recently fired, was found in the room where appellant was hidden on the return of the soldiers and civilians. There was evidence that outside this room some empty pistol shells were found, and that they had been recently fired. These were found on the ground some time after the homicide.

In the case of Benner v. State, 43 Tex. Cr. R. 347, 65 S. W. 1102, this court discussed the rules of law applicable to principals. These are summarized in a syllabus to that case as follows:

“If two or more conspire to do an offense, and it is committed, all present are guilty as principals, and each is responsible for collateral acts growing out of the common design,
“Where there is no conspiracy to commit an offense, yet it is committed by one, and another is present, and knows the intention of the others, and by words or acts aids the persons engaged, he is guilty with them to the extent of his knowledge, or for the reasonable consequence of the acts aided.”

We think the evidence fails to show that there was a conspiracy and fails to show that appellant acted with others, aided and abetted them with any knowledge of a guilty intent; in other words, we think the evidence fails to raise the issue authorizing the court to submit to the jury the issue of principals. Marwilsky v. State, 9 Tex. App. 377; Burrell v. State, 18 Tex. 713; Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456; Michie on Homicide, pp. 48-9-50, and cases cited; Bhodes v. State, 39 Tex. Cr. R. 332, 45 S. W. 1009; McAlister v. State, 45 Tex. Cr. R. 259, 76 S. W. 760, 108 Am. St. Rep. 958; Criner v. State, 41 Tex. Cr. R. 290, 53 S. W. 873.

Appellant insists that the evidence is not sufficient to support his conviction. A substantial statement of tlie evidence has been made hereinbefore. We do not think it is sufficient to show appellant’s guilt. Sanchez v. State, 70 Tex. Cr. R. 24, 156 S. W. 218.

If there should be another trial on similar facts, the law of circumstantial evidence should be' submitted. There is no evidence that appellant actually took part in the homicide, and if there is evidence that he aided or abetted his brother, it was wholly circumstantial. Early v. State, 50 Tex. Cr. R. 344, 97 S. W. 82; Burnam v. State, 61 Tex. Cr. R. 617, 135 S. W. 1175.

Appellant’s assignment with reference to the misconduct of the jury cannot he considered for the reason that the evidence heard by the court thereon was not filed until after the end of the term of court at which he was tried. Black v.' State, 41 Tex. Cr. R. 185, 53 S. W. 116.

We do not think that the issues of illegal arrest and manslaughter were involved.

Because of the errors pointed out, the judgment of the lower court is reversed, and the cause remanded.
      other cases see same topic and K2DY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    JOHNSON v. STATE.
    (No. 4400.)
    (Court of Criminal Appeals of Texas.
    March 21, 1917.)
    1. Intoxicating Liquors <&wkey;239(5) — Offens-bs — Instruction.
    In a prosecution for the illegal sale of intoxicating liquors, where the evidence showed a sale of whisky, it was proper for the court to instruct the jury that whisky is an intoxicating liquor.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 336.]
    2. Criminal Law <&wkey;1086(14) — Appeal — Questions Presented — Refusal of Requested Charge.
    Under Code Cr. Proc. 1911, arts. 735, 737, 737a, and 743, as amended by Act April 5, 1913 (Acts 33d Leg. c. 138), regulating the giving of the charge and saving of exceptions thereto, a bill of exceptions filed two or three days after the trial by accused, who did not object to the charge as failing- to state the law as to insanity from the recent use of intoxicating liquors, which bill complained of the court’s refusal to give a requested charge on that subject, but did not show, nor did the record, that a request therefor was presented to the judge before the charge was read to the jury, cannot be considered.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2767.]
    3. Criminal Law <&wkey;814(10) — Instructions —Insanity from Intoxication — Evidence.
    Testimony by accused that he was drunk and did not know that he made the alleged sale of whisky is not sufficient to require the giving of a requested charge on insanity from the recent use of intoxicating liquor.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1979, 1981.] "
    4. Intoxicating Liquors <&wkey;239(5) — Offenses — Instructions—Defining Intoxicating Liquor.
    In a prosecution for the illegal sale of intoxicating liquor, where the evidence showed- a sale of whisky, it was unnecessary for the court to define intoxicating liquor further than to charge that whisky was an intoxicating liquor.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. § 336.]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    M. R. Johnson was convicted of illegally selling intoxicating liquors, and lie appeals.
    Affirmed.
    I. N. Williams, of Mt. Pleasant, for appellant. E. B. Hendricks, Asst. Atty. .Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for illegally selling intoxicating liquors in said county while the law in force made it a felony to- do so, and his punishment assessed at the lowest prescribed by law.

The uncontradicted testimony shows that at the time alleged in the indictment appellant sold whisky to the party to whom the sale was alleged to have been made. The testimony of two state’s witnesses was positive that appellant sold whisky to said purchaser; that the purchaser called for whis-ky; appellant told him it was whisky; delivered it to him as such; that it was so labeled. There is no testimony to the contrary, and no intimation therefrom that it was other than whisky. The court in submitting the case for a finding-properly required the jury to believe from the evidence .beyond a reasonable doubt every essential necessary under the law before they could convict. He further told them that, if they had a reasonable doubt of whether the liquor claimed to have been sold was intoxicating, to find him not guilty. In addition he charged the reasonable doubt, the presumption of innocence, etc.

The court correctly told the jury that whisky is an intoxicating liquor. Rucker v. State, 24 S. W. 902; Parker y. State, 39 Tex. Cr. R. 262; Aston v. State, 49 S. W. 385; Doutliitt v. State, 61 S. W. 404; Sebastian v. State, 44 Tex. Cr. R. 510, 72 S. W. 849; Rutherford v. State, 49 Tex. Cr. R. 22, 90 S. W. 172; Wilcoxson v. State, 91 S. W. 581; Smith v. State, 56 Tex. Cr. R. 501, 120 S. W. 881; Hambright v. State, 60 Tex. Cr. R. 253, 131 S. W. 1123.

Appellant testified and claimed he was drunk and did not know that he made the alleged sale of whisky, if he did. The other state’s witnesses who testified stated, in effect, that he was not so drunk, but that ho was drinking. Appellant by his testimony did not claim that he was insane from the recent use of intoxicating liquors nor from any other cause; just drunk. . He made no objection whatever to the court’s charge in failing to submit a charge on insanity from the recent use of intoxicating liquor. He has a bill which was filed two or three days after the trial complaining that the court refused to give .a special charge on the sub-jeet copied in the bill, but it nowhere shows, nor does the record, when that charge was presented to the judge; at least there is nothing to show that it was presented to the judge and asked at any time before the judge charged the jury. Under such circumstances it cannot be considered. Articles 735, 737, 737a, and 743, as amended by Act April 5, 1913, p. 278; Galan v. State, 76 Tex. Cr. R. 626, 177 S. W. 124; Ross v. State, 75 Tex. Cr. R. 60, 170 S. W. 305, and cases cited therein; and many other cases decided by this court since then exactly to the same effect.

However, if the question was presented so that it could be considered, the court should not have given it. The evidence did not raise the issue. Lucas v. State, 69 Tex. Or. R. 273, 155 S. W, 527. Besides, as he was assessed the lowest penalty, the refusal to give such charge would in no way injure him. The fact that he had pleaded for a suspended sentence could not and would not affect the question.

It is unnecessary for the court to define what constituted intoxicating liquor other than what he did charge.

No error is shown in the trial ofi the case, and the judgment is affirmed.

       tftoFor other cases see saíne topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    COGDELL v. STATE.
    (No. 4364.)
    (Court of Criminal Appeals of Texas.
    Feb. 21, 1917.
    On Motion for Rehearing, March 21, 1917.)
    1. Food <@=»20(5) — Indictment — Variance Between Allegation and Proob.
    That the information alleged defendant was agent of a corporation, and the proofs showed that company was a partnership, does not present reversible error in a prosecution under Pen. Code 1911, art. 735, prescribing a penalty for selling misbranded feeding stuff.
    [Ed. Note. — For other eases, see Food, Cent. Dig. § 21.]
    On Motion for Rehearing.
    2. Criminal Law &wkey;>-13 — Statutes—Validity — U n certainty — '“Substantially. ’ ’
    In view of' Pen. Code 1911, art. 6, declaring that whenever a provision of the penal law is so indefinitely framed that it cannot be understood, it shall be disregarded, article 735, providing a penalty for selling feeding stuff without a label stating that said feeding stuff contains “substantially” a larger percentage of protein or a. smaller quantity of crude fiber than is contained therein, is too indefinite and uncertain to describe an offense; the word “substantially” applying to “a smaller quantity of crude fiber,” as well as “a larger percentage of protein.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 13, 14.
    For other definitions, see Words and Phrases, First and Second Series, Substantially.]
    ' Appeal from Haskell County Court; A. J. Smith, Judge.
    Earl Cogdell was convicted for violating the feeding stuff law, and he appeals.
    Reversed.
    Scott W. Key, of- Haskell, and Chas. L. Black, of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for violating the “feeding stuff” law, and fined $250. The offenses are prescribed by article 735 of our Penal Code, which, as applicable herein, is:

“Any manufacturer, importer or agent, selling, offering or exposing for sale, any concentrated commercial feeding stuff, * * * -with a label, stating that said feeding stuff contains substantially a larger percentage of protein, fat or nitrogen-free extract, or a smaller quantity of crude fiber than is contained therein, * * * shall * * * be fined not less than one hundred dollars nor more than five hundred dollars.”

The information and complaint aver:

That appellant was “the agent and manager of Western Cotton Oil & Gin Company, an incorporated company engaged in said state in the manufacture and sale of concentrated commercial feeding stuff, to wit, cotton seed meal and hulls, of said county and state, and the said Earl Cogdell did then and there in said Haskell county, Tex.-, as such agent and manager, sell to A. F. Moffitt, a. person doing business under the name of A. F.' Moffitt & Co. in Cleburne, Johnson county, Tex., 200 sacks of cotton seed meal and hulls, each bag containing said meal and hulls had a label thereon stating that said feeding stuff contained substantially a larger percentage of protein than was actually then and there- contained therein, to wit, the said label contained the statement that said feeding stuff contained not less than 42 per cent, of protein, whereas in truth and in fact not more than 35.50 per cent, of protein was actually then and there in said feeding stuff, and’said label thereon further stated that there was a smaller quantity of crude fiber, than was then and there actually contained therein, to wit, the said label stated that said feeding stuff in said bags contained not more than 12 per cent, of crude fiber, whereas in truth and in fact said feeding stuff in said bags contained more than 14 per cent, of crude fiber and some of said bags or sacks contained 14.98 per cent, of crude fiber, and no less.”

Appellant attacks said law, claiming that wherein it prescribes that the label' stating that said feeding stuff contains “substantially”' a larger per cent, of protein, etc., than is contained therein, is so indefinite and of such doubtful construction that it cannot be understood, and that, under article 6, P. C., it is therefore wholly inoperative. This question is not free of difficulty. It seems if we should follow our Supreme Court in the casé of the State v. Railway Co., 179 S. W. 867, holding that “light repairs,” in our ear shed statute, is not too indefinite or uncertain, and the case of State v. Railway Co., 154 S. W. 1159, under our “water-closet” statute, holding that statute valid, and Bradford v. State, 180 S. W. 702, and the authorities cited in those cases, appellants attack should not be sustained. However, under the provisions of our Penal Code, and under the authorities in point cited- in State v. I. & G. N. Ry. Co., 165 S. W. 892, by the Court of Civil Appeals at Galveston, this court has reached the conclusion that that part of said article 735, P.'C., which, attempts to make it an offense, if the label on the article of feeding stuff states that it contains “substantially” a larger percentage, etc., than is therein, is too indefinite and too uncertain to prescribe an offense. There is a difference between what certainty must be prescribed to make an offense from that which exempts from an offense, and said cases in 179 S. W. and 180 S. W. could be distinguished from this case, but the case in 154 S. W. might not be. Evidently different persons might differ as to what would be “substantially” such larger percentage. Eor instance, one court or jury might hold that 1 per cent, less, or even if a less per cent, than that is stated, would be a violation of the law, while another might hold that 10 or more per cent, less would not be. We are aware that the Supreme Court in 179 S. W., supra, overruled the Galveston Court of Civil Appeals, that “light repairs” was not too indefinite. So that this court holds that that part of the said article attempting to prescribe an offense is inoperative.

It will be noticed, however, that said article 735 prescribes another offense from that attempted to be prescribed, discussed above, and that is, it makes it an offense for any agent, etc., to sell, etc., said feed stuff when “a smaller quantity of crude fiber than is contained therein,” is stated to be therein on the label. The complaint and information charge this offense as well as the other. Therefore we cannot reverse and dismiss this prosecution because of the invalidity of the first charge, but appellant can be held for trial under the other.

Another contention by appellant is that there is a fatal variation between the allegation and the proof, in that the information avers that appellant was the agent, etc., of said oil and gin company, “an incorporated company,” and that having alleged this, it was necessary to prove it, and that instead of the proof showing that said oil and gin company was a corporation, that it was proven a partnership, and not an incorporated company. In the opinion of the writer this does not present reversible error, for it was immaterial whether the concern for which appellant was agent was an incorporated company or a partnership, and that' that line of authorities which holds that where it is necessary to allege that the injured person is a corporation it is necessary to prove it, does not apply. Appellant also complains that the evidence is wholly insufficient to show that appellant made the alleged sale to Mofiitt. We think his contention on this point is correct. The evidence does not show that appellant made the alleged sale to Moffitt. It does not show who made the sale, but tends rather to show that the firm itself made the sale. No other question need be discussed.

The judgment is reversed, and the cause-remanded.

On Motion for Rehearing.

The contention now made by appellant in his motion for rehearing is that the true construction of article 735, P. 0., is that the word “substantially” applies as well to “a smaller quantity of crude fiber” as it does to “a larger percentage of protein,” etc., and that the intention of the Legislature was that said word “substantially” should apply to both.

In the original opinion it was held that said word applied to the latter. If appellant’s contention now is correct, it must result in a reversal and dismissal of this cause. This question now presented was not made on the submission on this point as it now is, and hence escaped that careful attention and consideration which should have been given to it. In order to try to make clear the question said article 735, as it applies in this case, will be here succinctly stated: Any agent selling any concentrated commercial feeding stuff with a label stating that said feeding stuff contains substantially a larger percentage of protein, or a smaller quantity of crude fiber than is contained therein, shall be fined, etc.

Upon a careful and thorough consideration of the statute and the question, we have concluded that appellant’s contention is correct, and that the true construction is, and the probable intention of the Legislature was, that the word “substantially” should apply to “a smaller quantity of crude fiber” as it does to “a larger percentage of protein,” etc.; in other words, that the said article in this respect properly construed and as intended by the Legislature was as if it read this way: Any agent selling any concentrated commercial feeding stuff with a label stating that said feeding stuff contains substantially a larger percentage of protein, or (substantially) a smaller quantity of crude fiber, than is contained therein, shall be fined, etc. By this it will be seen that the statute should be interpreted as if the word “substantially” was contained therein before the words “a smaller quantity of crude fiber.” It is deemed unnecessary to enter into a discussion and citation of the rules of construction whereby this conclusion is reached.

The result is that a rehearing must be granted, the original order reversing and remanding the cause set aside, and the cause reversed and dismissed, which is accordingly ordered.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J. MORROW, J. PRENDERGAST, J.

text:
    STUBBS v. STATE.
    (No. 4338.)
    (Court of Criminal Appeals of Texas.
    March 21, 1917.)
    CRIMINAL Law <&wkey;368(3) — Evidence—Admissibility.
    In a prosecution for homicide, where accused contended that when he shot, deceased was approaching him with an open knife in his hand, and one of the state’s witnesses testified that he and a doctor reached deceased a short time after he was killed, and that he picked up deceased’s knife, which was partly open, and that he said nothing to anybody about the knife, the doctor’s testimony that the witness told him the knife was open when he picked it up is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 821.]
    Prendergast, J., dissenting.
    Appeal from District Court, Hopkins County ; Wm. Pierson, Judge.
    Will Stubbs was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    H. C. Connor, C. O. James, and C. E. Sheppard, all of Sulphur Springs, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of manslaughter, and allotted two years’ confinement in the penitentiary.

A brief statement of the evidence discloses that deceased had been employed by appellant as a farm hand. Among other things, deceased plowed with a mule, and while plowing became angry and gave the mule a severe beating. Appellant on account of this discharged him. Deceased became enraged and made threats against appellant on account of it, also charging appellant up with the fact that he (deceased) had been fined for malicious mischief for beating the mule. Deceased left Texas and went to New Mexico, and was gone for a year or so and returned, still making threats against appellant on account of these former matters; and further stated, in substance, that he intended to return to New Mexico, but was going to inflict personal violence or perhaps kill appellant before he left Texas. They lived in the same neighborhood. Appellant owned, in addition to the farm, which was in the edge of the little town where the homicide occurred, a store and blacksmith shop, situated in the town. On the day of the homicide deceased went to the .blacksmith shop, where appellant was doing some blacksmith work, and sat around thé shop a little while until appellant ceased shoeing a horse. Appellant started to his store, which was a short distance away, deceased following. The store was closed, and appellant went to the side door for the purpose of going into the store. Deceased was following him with a knife in his hand. Some of the testimony shows that he had the knife, while there may be some indicating that he did not have it. When deceased was within eight or ten feet of appellant, approaching him in a threatening attitude with the knife, appellant fired one: shot, which terminated fatally.

A bill of exceptions was reserved to the action of the court refusing to permit a witness to testify that while en route from the blacksmith shop to the store something was said by .deceased, and appellant turned and motioned him away. Under the circumstances this testimony ought to have gone to the jury. It was beneficial to the defendant on the theory of self-defense. If he anticipated that deceased intended to execute his threats at the time he was following him he had a right to request him not to follow him, and also to introduce the fact that he did, and waived his hand as if to tell him to go away.

Another bill of exceptions recites that witness Henderson, testifying for the state, was permitted to state that a few days before the killing he saw deceased, Manuel Grayson, around the stores at Bonanza, and that on such occasion he was not doing anything out of the ordinary. Various and sundry objections were urged to this, and the bill recites appellant was not present and was not aware of the fact that deceased was around the little town as indicated by the witness. This should not have been permitted to go to the jury. If appellant knew of the fact that he was around the town and had seen him, it would have been admissible as bearing upon the question of threats, otherwise it could not affect the defendant’s mind. This could have had an injurious bearing against defendant as indicating deceased had no animus toward appellant. This testimony would not be admissible, unless it could be shown that appellant was aware of the fact that deceased had been around the town as indicated by the witness.

Another bill recites that while Dr. Sanders, a state’s witness, was on the stand and had testified that he saw Arch Henderson put a knife in the deceased’s pocket just a few minutes after he was shot and while he was lying on the ground where he fell, he was asked by defendant’s counsel if Arch Henderson said anything to witness about the knife at the time or about the time he put same in deceased’s pocket. To this the court sustained the state’s objection. Witness would have stated that Henderson told him at the time he picked the knife up by the body of deceased it was open. This witness was further asked by appellant’s counsel whether Henderson tdld him then and there that he had picked up the knife by the body of deceased and found it open, and the state’s counsel again objected. If the witness had been permitted to answer he would have stated that:

“Arch Henderson told me that he picked up the knife there by the body of deceased, and that it was open when he picked it up.”

Henderson denied making the remark. This character of testimony has been the subject of quite a number of decisions in this state, some of which will be found collated by Mr. Branch in his work on Criminal Law, § 339. In the case of Upton v. State, 48 Tex. Cr. R. 294, 88 S. W. 212, Mr. Branch thus states the ruling in that case:

“What a messenger says in delivering a note, as to who had sent it, is admissible as res gestse of the act of delivery.”

Again he states the rule:

“When an act is done to which it is necessary or important to ascribe a character, motive or object, what was said by the actor at the time from which the character, motive or object may be collated is part of the res gestas — verbal acts —and may be given in evidence whether or not the actor be a party to the suit.” Stockman v. State, 24 Tex. App. 392, 6 S. W. 298, 5 Am. St. Rep. 894; Upton v. State, 48 Tex. Cr. R. 294, 88 S. W. 212; Russell v. State, 11 Tex. App. 295.

In the Russell Case, supra, Judge Hurt, stating the account given by the witness, says:

“The deceased’s account is that the Russell boys, when he overtook them, cursed him. Carter, a witness for the state, heard two ‘voices cursing each other.’ When Carter and others overtook deceased, he had just separated with the Russell boys, and said they were down there in the road cursing' him, and that he was going down after them, and loped off. Wm. Russell states that when they heard deceased come running after them that they increased their speed to a gallop towards home. Defendant proposed to prove by Wm. Russell that he (defendant) then said: T heard John Lawrence coming; let us gallop up; I don’t want to have any difficulty with him.’ This was objected to by the state, and the objections were sustained by the court, and defendant reserved his bill. This was error. This evidence was very evidently admissible. There could have been but one objection to it, and that is that it may have been manufactured by the defendant, and made self-serving declarations. This all may be true, but if all evidence which may have been manufactured for the occasion is to be rejected, we fear that the limits would be very narrow indeed. The court below admitted the fact that they increased their speed to a gallop. This was an act, and if the act was evidence, certainly what was said at the time in reference to the act was also admissible. These facts were so closely connected with other acts and the killing, in point of time, as to constitute res gestas, so called.”

This rule was followed in Stockman v. State, and Upton v. State, supra, and quite a lot of other cases. In this connection it was shown that deceased had the knife; it was identified as his knife, and Henderson picked it up where the body fell in front of his head about two feet. He placed the knife in the pocket of deceased, and appellant desired to. show, in connection with picking the knife up and returning it, that he remarked that it was open and he closed it. The declaration of Henderson at the time was made in connection with his act and as a part of it in picking up and returning the knife to the pocket of deceased. If the knife was open, as stated by Henderson, it was favorable to appellant’s theory that deceased was approaching him with an open knife in his hand at the very time he fired the shot. Henderson testified for the state that the knife was half open, but he did not remember making the remark to Dr. Sanders that the knife was open. Another witness did testify in that connection that the deceased’s knife was open; he also testified with reference to Henderson picking up the knife and placing it in the pocket of deceased. The evidence is not right clear one way or the other as to the then whereabouts of defendant, except that he was near by, and some of the testimony . indicates he may have been present and within hearing of the remarks that were made at the time. Dr. Sanders should have been permitted to testify to the matters sought to be elicited. It was a part of the matters brought out by the state, and within two or three minutes and almost immediately after the shot was fired. The knife being shown to be the property of deceased; that he had it in his hand; Henderson picked it up and returned it to his pocket, closing it as he did so; Henderson’s remarks at the time — it occurs to the writer would be a part of the res gestse of that transaction, and explanatory of it. It was corroborative of other witnesses who state deceased had the knife in his hand. Foster’s Case, 8 Tex. App. 248. Scott testified that the knife was open, and was picked up and returned to the pocket of deceased by Henderson, but Henderson did deny making the statement to Dr. Sanders that it was open. Upon another trial, if the circumstandes should be developed as shown by this record and the bill of exceptions, we are of opinion that Dr. Sanders should be permitted to testify as shown by the bill of exceptions. This would not be regarded as the statement of bystanders as understood legally under the rule of the exclusion of the statements of bystanders. The rule applicable to bystanders was pretty fully discussed by Judge Hurt in the case of Felder v. State, 23 Tex. App. 477, 5 S. W. 145, 59 Am. Rep. 777. We do not believe this testimony and this ruling of the court comes within the purview of the rule laid down with reference to bystanders’ testimony. If it is res gestse, it is admissible. This is fixed by the statute as the writer understands it. Article 811, O. O. P. Any and every fact has its res gestse.

Another bill recites that the witness Nat Gafford testified he knew deceased, and that he saw him at Brashear in Hopkins county on the day that he came back from New Mexico, and just a few days before the killing ; that he had a conversation with deceased at that time, and in that conversation deceased was talking about what a good country they had in New Mexico, and witness asked him what he came back to this Godforsaken country for, and deceased said he had a settlement to make with a God damned son of a bitch here, and he had come back to make it. The state then moved to exclude this testimony from the jury because it had no reference to anybody. Appellant offered this testimony to show that this threat was intended against the defendant. The bill recites that there was no evidence tending to show that deceased had any ill will towards any other person in the country except the defendant. Numerous threats against the life of defendant were shown to have been made by deceased on different occasions before he left for the West, and also after returning from the West, and just prior to the killing. The bill further recites all the testimony shows that the deceased meant defendant as the party with whom he had a settlement to make, and that the testimony was admissible to show the condition of the mind of deceased toward defendant, and his reason for returning to this country, and to explain why he followed the defendant just prior to the killing. We are of opinion the court was in error in excluding this testimony under the statements in the bill of exceptions, Which is approved without qualification by the judge. If this testimony individuated the defendant either directly or by circumstances or pointed to the defendant as the man against whom the threat was made, and with whom he was going to have the settlement, it was admissible. We think under the statements of this bill of exceptions this testimony ought to have gone to the jury.

There was a motion for continuance overruled. This was. made on account of the absence of a witness to prove threats. This question is not discussed for the reason this witness can be secured upon another trial.

There were exceptions reserved to the charge on manslaughter. In view of tire fact that appellant was given the lowest punishment for manslaughter, we are of opinion that these are not very important, though the charge is subject to criticism.

There are quite a lot of exceptions to the charges with reference to self-defense, viewed both from the standpoint of threats and from self-defense independent of threats. We have not thought it advisable to go into a full discussion of these matters as presented, but mention them so that upon another trial the sharges will avoid the defects. These charges are, perhaps, subject to two phases of criticism: First, they are too broad and general, and given in the abstract, without a sufficient direct application of the law to the facts; second, the charges present the matter from the standpoint of the belief of the jury rather than from the standpoint of the defendant. These matters are properly raised, we think, in the exceptions of appellant, and in requested but refused instructions. Charges on self- ' defense should never be given in a negative form. If appellant is entitled to the right of self-defense under the facts of the case, he is entitled to have charges given as viewed from his standpoint, and not that of the jury. The charges are rather confused on these questions, and upon another trial the issue of self-defense should not be presented from the viewpoint of the jury, but from the standpoint of the defendant, with a direct pertinent application of the law to the facts produced on the trial. While the charges of the court in a general way present the theories of self-defense in the abstract, yet they are not sufficiently pertinent and affirmative, and there is, as before stated, rather a leaning towards instructing the jury to view the matters as they believed the facts to be instead of the case as presented to appellant at the time he acted. The defense must be viewed as understood by the accused at the time of acting, and not as viewed by the jury in the light of subsequent events, or as they view the case at the time of trial.

The judgment is reversed, and the cause remanded.

MORROW, J.

An important issue and one upon which there is conflict of testimony was whether the deceased had an open knife in his hand at the time of the homicide. The state’s witness Arch Henderson on his direct examination testified that he and Dr. Sanders reached the deceased a very short time after he was killed; that he (witness) picked up the knife (which by other testimony was shown to have belonged to deceased); that it was lying near the body of deceased and was partly open, and he picked it up and laid it in deceased’s hat a minute, and then put it in his pocket. On this examination he said, “I didn’t say anything to anybody about the knife.” On cross-examination he testified that he did not remember stating in the presence of Sanders that the knife was open. Appellant subsequently sought to show by the witness Sanders that the state’s witness Arch Henderson at or about the time the knife was picked up stated that it was open. This testimony was excluded on objection of the state’s counsel; and I think, under the circumstances detailed, that the court committed error in excluding it.

I concur in the reversal.

PRENDERGAST, J.

(dissenting). In no contingency was the evidence of Dr. Sanders, as to what he would have testified that Arch Henderson said about the knife, admissible as res gestse. At the most, if admissible for any purpose at all, it might have been for attempted impeachment of said Henderson.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J. PRENDERGAST, J.

text:
    LYLE v. STATE.
    (No. 4309.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.
    Dissenting Opinion April 6, 1917.)
    1. Constitutional Daw <&wkey;48, 50 — Legislative Powers — Limitation or Grant.
    The legislative branch of the government has full authority to pass laws except in the particulars wherein it is restricted by the Constitution of the United States or forbidden by express or implied provisions of the Constitution of the state, and the courts will not declare an act unconstitutional unless it is clearly made to appear in its enactment that the Legislature has exceeded its powers.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 46, 48, ,49; Statutes, Cent. Dig. § 56.]
    2. Courts <&wkey;90(3) — Decisions Controlling —Constitutionality of Statute.
    Ordinarily, where the courts have passed on the constitutionality of a statute, they will not in a subsequent case reopen the discussion.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 313, 317.]
    3. Courts c&wkey; 90(1) — Former Decisions as Controlling.
    In so far as the principle of stare decisis is concerned, the decisions of the Supreme Court of Texas rendered before its criminal jurisdiction was transferred to the Court of Criminal Appeals are in effect decisions by the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 313-315.]
    4. Constitutional Law <&wkey;18 — Recognition of Judicial Construction of Former Constitution.
    The judicial interpretation of constitutional provisions is so forcible that, where a new Constitution is adopted without change of the rule laid down by the courts, such construction is adopted by the new Constitution and becomes a part of it to the degree that it cannot be changed even by a statute expressly undertaking to do so.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§. 13, 17.]
    5. Courts <&wkey;90(l) — Former Decisions Controlling-Decisions of the Same Court.
    Where a rule has once been deliberately adopted and declared by the courts, it should not be disturbed unless by a court of appeal or review, and never by the same court except for very urgent reasons and upon clear manifestation of error.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 313-315.]
    6. Courts <©=90(4) — Former Decisions as Controlling — Constitutional Provisions.
    The rule that, when a statute has been construed by the highest court having jurisdiction to pass on it, such construction is as much a part of the statute as if pláinly written into it originally, applies to the construction of Constitutions.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 313, 318.]
    7. Constitutional Law <&wkey;65 — Local Option-Pool Rooms.
    In view of Const, art. 1, § 28, providing that no power of suspending laws shafl be exercised except by the Legislature, and the fact that both by judicial interpretation and legislative construction of former Constitutions recognized by the present Constitution there is no implied power given by the Constitution to pass local option laws, and of Rev. St. 1911, art. 7355, §
    8. expressly permitting the keeping of pool rooms and the use of pool tables for profit, Acts 33d Leg. c. 74, authorizing the qualified voters of any county or certain political subdivisions of a county to determine by an election whether pool rooms or pool halls should be prohibited therein, and making it an offense to there operate or maintain them if the result of the election be in favor of their prohibition, is unconstitutional.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 116.]
    Prendergast, J., dissenting.
    Appeal from Donley County Court; J. C. Killough, Judge.
    Frank Lyle was convicted of unlawfully operating a pool hall prohibited by Acts 33d Leg. c. 74, and he appeals.
    Reversed, and cause ordered dismissed.
    E. B. Hendricks, Asst. Atty, Gen., for the State.
   MORROW, J.

Appellant was charged with and convicted of unlawfully operating a pool hall, prohibited by the people at an election as provided for in chapter 74 of the Acts of the Thirty-Third Legislature. The sole question is whether that act of the Legislature is valid.

The legislative branch of the government has full authority to pass laws except in the particulars wherein it is restricted by the Constitution of the United States or forbidden by the express or implied provisions of the Constitution of the state. And courts will not declare an act unconstitutional unless it is clearly made to appear in its enactment the Legislature has exceeded its powers, and ordinarily where the courts have passed on the constitutionality of a statute they will not in a subsequent case reopen the discussion. This court and the Supreme Court having reached opposite conclusions regarding the validity of this act, this court holding it valid, and the Supreme Court holding it void, we feel constrained co review the subject.

The act in question provides for the holding of elections in counties and subdivisions thereof to allow the qualified voters in the county affected to determine whether or not pool rooms shall be prohibited, and section 7 is as follows:

“If a majority voting at such elections vote against the prohibition the court shall make an order declaring the results and have the same entered of record in its minutes.”

Section 13 provides that, when the result of the election is declared against the operation of pool halls in a given territory, their maintaining and operation shall be an offense, punishable by fine or imprisonment.

The decision of the Supreme Court, in so far as it holds that the Legislature was without authority to' delegate to the qualified voters the question whether pool halls shall be maintained, is based on the decision of the Supreme Court in the case of State v. Swisher, 17 Tex. 441, and that of this court to the contrary is based on the propositions that the case mentioned has been overruled by the Supreme Court, and by various decisions of courts in other states.

In the year 1854, while the Constitution of 1845, which contained no reference to local option laws, was in effect, the Legislature passed a law (Acts 5th Leg. c. 88) authorizing the determination of the question as to whether spirituous or vinous liquors should be licensed by a vote of the majority of the electors. The provisions of this act were as follows:

“Be it enacted by the Legislature of the state of Texas, that from and after the passage of this act, there shall be no more license issued or granted to any person or firm in this state, authorizing said person or firm to sell spirituous or vinous liquors in less quantity than one quart, from and after the first Monday of August next, unless a majority of the qualified electors shall at an election to be held for that purpose, as provided in the second section of this act, cast their votes in favor of the granting such license.
“That it shall be the duty of the Governor to order an election to be held in each and every county of this state, to determine whether or not the sale of spirituous or vinous liquors. in less quantity than one quart, shall be abolished or continued; the said election shall be held on the first Monday in August next, and returns made as in all elections for county officers, and the vote shall be for or against said license, and if upon counting the votes thus cast and returned, there shall be found to be a majority of votes cast for the license, then and in that case license may issue upon proper application, to any person or firm as heretofore, to sell spirituous or vinous liquors in less quantity than one quart, but if a majority of votes so east shall vote against the license, then there shall be no more license issued to any person or firm to sell as aforesaid.”

The constitutionality of this act was before the Supreme Court of this state in 1857, and it was held that the act was unconstitutional. The language of the court in rendering the decision was in part as follows:

“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 lawmaking 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.” State v. Swisher, supra.

At the time this decision was rendered the Supreme Court bad appellate jurisdiction of both civil and criminal matters and was the one court of last resort. Subsequently, upon the creation of this court, the criminal jurisdiction was transferred to it. So far as the operation of the principle of stare decisis is concerned, the decisions of the Supreme Court rendered before its criminal jurisdiction was transferred are in effect decisions by this court.

After the Swisher Case, supra, was decided, the Constitution of 1876 was adopted, and therein, in section 20, art. 16, was conferred upon the Legislature the authority to pass a law authorizing the voters in given territory to determine whether or not the sale of intoxicating liquors should be prohibited therein. The terms of section 20, art. 16, were as follows:

“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.”

It was thereafter found that this article only authorized the holding of such elections in counties and subdivisions thereof mentioned in section 20, and in 1891 that section was amended so as to add thereto the following words:

“Or such subdivision of a county as may be designated by the commisioners’ court of said county.”

The same Constitution of 1876 also provided by section 23, art. 16, that the local option feature might be applied to the prohibition of the running at large of certain stock.

The decision of the Supreme Court in the case of State v. Swisher, supra, was referred to and approved by the same court in the opinion in the case of the State v. Robinson, 19 Tex. 479. It is referred to again in the case of San Antonio v. Jones, 28 Tex. 32, decided in 1866. Referring to the case of State v. Swisher, the court uses the following language:

“The law of this ease is unquestionably sustained by sound reason, as well as the highest authority, and the question decided by it is regarded by us as correctly and conclusively settled.”

At the time the Supreme Court rendered the decision in the case of State v. Swisher, supra, the same question had been passed upon by the courts of last resort in a number of the states of the Union having Constitutions with provisions similar to the Constitution of 1845, which, as above stated, made no specific reference to the right of the Legislature to pass so-called local option laws. There was at that time a conflict of authority, the courts of some of the states holding that laws such as that under consideration in the Swisher Case were authorized by the Constitution, and others holding the contrary. Among those mentioned in the Swisher Case as having been called to the court’s attention in which similar laws had been held unconstitutional were the following: Bradley v. Baxter, 8 How. Prac. (N. Y.) 18, in Livingston’s Law Magazine for June, 1854; Parker v. Com. Penn., 6 Pa. 507, 47 Am. Dec. 480; Rice v. Poster, 4 Har. (Del.) 479; Johnson v. Rich, 9 Barb. (N. Y.) 680; People v. Collins, Supreme Court of Michigan, in 2 Am. Law Reg. 591, August, 1854. It appears from the opinion also that the court was apprised fully that the Vermont court had reached a contrary conclusion. One of the cases which were considered by the Supreme Court in the decision of the Swisher Case will illustrate the holding in the others. The case of Rice v. Foster, 4 Har. 479, decided by the Supreme Court of Delaware, passed upon an act (Act Feb. 19, 1847 [10 Del. Laws, c. 188]) the first section of which is as follows:

. “That on the first Tuesday in April, 1847, the citizens of the several counties in this state, shall decide by their votes, whether or not the retailing of intoxicating liquors shall be permitted in said counties.”

The other provisions of the act provide for the form of ballots, the manner of holding elections, and the prohibition if adopted by the requisite vote. The court in its decision held the act unconstitutional.

It is thus made apparent that the Supreme Court of this state in the Swisher Case deliberately decided that there was an ■implied inhibition in the Constitution of 1845 against the passage of a local option law whereby the voters might determine by their vote whether or not the general law of the state providing for a license for the sale of intoxicating liquors should be suspended or remain in force. From the reasoning upon which the decision is based and the citation of authorities which it considered in reaching its conclusion it follows that the implied inhibition was applicable, not only to laws prohibiting the sale of intoxicating liquors, but that it was general in its effect. A new Constitution was adopted in 1861, and another in 1869, in neither of which was there contained any express power given the Legislature to pass local option laws of a general character. During the years intervening between the decision in the Swisher Case, supra, and the adoption of the Constitution of 1876 the Supreme Court of the state, as above pointed out, had on several occasions repeated its declaration of adherence to the rule declared in the Swisher Case, and the Legislature, manifestly regarding such rule to inhibit the passage of local option laws such as that under consideration and that passed upon in the Swisher Case, passed no such law until after the Constitution of 1876 was adopted, wherein there was given in article 16, § 20, the express power to pass such laws with reference to the prohibition of the sale of intoxicating liquors. The importance of legislative construction of constitutional provisions has often been recognized. Cordova v. State, 6 Tex. App. 208. And in Rowell v. State, 17 Tex. App. 347, the rule that judicial interpretation of constitutional provisions is so forcible that, where a new Constitution is adopted without change of the rule laid down by the courts, the construction is adopted by the new Constitution and ' becomes a part of it to the degree that it cannot be changed even by a statute expressly undertaking to do so. The facts upon which this decision was based were so. In the Constitution of 1845 the term “jeopardy” was used. Before the adoption of‘that Constitution the same word had been used in former Constitutions and its meaning judicially determined. After the adoption of the Constitution of 1845 the Legislature passed a statute declaring the term “jeopardy” to have a meaning therein given, and in the case of Powell v. State, the decision was that this statute was void because the definition of “jeopardy” which it undertook to make was different from the meaning which the term had prior to the adoption of the Constitution and which the Constitution by its adoption without change of the term had made its own definition. Both by judicial interpretation and legislative construction, therefore, there was no implied power given by the Constitution to pass local option laws of the character passed upon in the Swisher Case. On the contrary, there was an implied prohibition against the passage of such law.

In the adoption of the Constitution of 1876, if it had been the intention of the constitutional convention that framed the Constitution to destroy any implied prohibition against the passage of such law and to recognize in the ¡Legislature general authority to pass them, the most expedient way to have given expression to this intention would have been to have included in the Constitution of 1876 a provision giving the general authority to pass such law. The fact that they did not write into the Constitution such general authority, but, on the contrary, wrote into it special authority to pass local option laws with reference to the prohibition of the sale of intoxicating liquors and the prohibition of stock running at large, strongly indicates that the intention of the constitutional convention was to delegate to the legislative authority to pass such laws only with reference to the subjects mentioned in the special authority given and to keep in force the implied prohibition against the passage of such laws touching any other subject. This intention is emphasized by the subsequent conduct of the legislative department of the government in that in 1883 it submitted to the people a constitutional amendment (section 3, art. 7, of the Constitution) so as to provide that a school district by a local option election might increase its taxing power. Again, in 1890, the Legislature submitted, and there was adopted, an amendment to section 9, art. 8, of the Constitution providing for a local option election to increase the taxing power of counties, cities, and towns for the purpose of public improvements. Again, in 1904, section 52, art. 3, was amended, the amendment having been submitted by the Legislature and adopted by the people, providing for a local option election for the improvement of rivers and creeks for irrigation and drainage, and for the construction of macadamized roads. And in 1906 section 9, art. 8, was again amended authorizing a loc.al option election for the maintenance of public roads. Various other amendments to the Constitution similar in their nature, all having the purpose of authorizing the Legislature to pass laws permitting the qualified voters in certain districts to determine questions by so-called local option elections, have been passed by the Legislature and submitted to the people. In order to increase taxing power in these districts, it was necessary to have a constitutional amendment, but if the Legislature had the power, “which it attempted to exercise” in the pool hall case, of submitting the determination of questions of this character to a popular vote, it was unnecessary to have included in any of these amendments that part of them which sought to give the Legislature the power to submit the questions involved to a popular vote, and the fact that the Legislature sought in these amendments this authority indicates that in its judgment it did not possess it.

The existence of the Swisher Case, supra, as an authority in the state against the validity of the law under consideration is called in question by reason of the fact that there are decisions in this state holding that the Legislature exercises no unauthorized delegation of its authority when it grants to municipal corporations charter privileges giving to the corporations the right to determine by vote of the electors whether or not the privileges will be exercised. There exists a distinction between this character of legislation and that which was passed upon by the Supreme Court in deciding the Swisher Case. The distinction between the two is well recognized, and by our own courts the soundness of the doctrine laid down in the Swisher Case is affirmed and emphasized, and in the same case the other rule with reference to municipalities above referred to is declared to exist. An instance of this is in the case of Werner v. Galveston, 72 Tex. 27, 7 S. W. 726, 12 S. W. 159, from which we quote as follows:

“In State v. Swisher, 17 Tex. 441, this court held an act of the Legislature which authorized the counties of the state to determine by popular vote whether liquor should be sold in their respective limits to be unconstitutional. But it does not follow from this that the Legislature has no authority to confer a power upon a municipal corporation and to authorize its acceptance or rejection by the municipality according to the will of the voters as expressed at the ballot box.”

Municipal corporations are generally recognized as instruments of local self-government, and throughout the constitutional history of Texas they have been so recognized. In the Constitution of 1876 their powers, duties, and limitations are defined in a number of sections, particularly in article 11, and from an early diiy in this state there have been stat utes permitting their incorporation and de-' fining their powers. These statutes, generally speaking, have been a general law of the state classifying municipalities and permitting them to incorporate by the adoption of the provisions of these general laws. These statutes are complete in themselves, and are general laws of the state pertaining to municipalities, and simply provide a means of incorporating, and until the adoption of the amendment of 1912 the Legislature had the power under the express provisions of the Constitution to pass a special charter for a municipal corporation within certain limitations relating to population, and some of these special charters have contained provisions that they should operate with the consent of the majority of the people of the corporation. All charters of this kind and those passed by general law and those adopted under the amendment of the Constitution of 1912 have a general limitation upon their power, which is expressed, and the last-named amendment is subject to such limitations as may be prescribed by the Legislature and providing that no charter or ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the state or of the general laws enacted by the Legislature of the State. This, much has been stated to illustrate the distinction between a statute which gives to a municipal corporation the privilege of determining whether it will or will not do a particular thing by a vote of the people where it is prohibited from doing anything that will encroach upon the authority of the Legislature and a law such as that under consideration which undertakes to authorize the people in a given locality to abrogate or suspend the operation of a state law in that locality by a vote of the people therein. Bearing this distinction in mind, the authorities in Texas and elsewhere touching the privilege of municipalities to decide matters by popular vote are in no sense in conflict with the rule adopted in this state by the Supreme Court in the case of the State v. Swisher, supra.

Other cases cited as qualifying the rule laid down in State v. Swisher are Johnson v. Martin, 75 Tex. S3, 12 S. W. 321; Stanfield v. State, 83 Tex. 317, 18 S. W. 577; Graham v. Greenville, 67 Tex. 62, 2 S. W. 742. An examination of these eases will disclose the fact that they do not qualify the rule adopted by the Supreme Court in the Swisher Case in its application to the statute under consideration, but are distinguishable from it upon the same general ground as that above discussed with reference to the case of Werner v. City of Galveston. Illustrating the recognition of the existence of the rule adopted in the Swisher Case, we quote from the decision by this Court in the case of Ex parte Massey, 49 Tex. Cr. R. 67, 92 S. W. 1089, 122 Am. St. Rep. 784:

“That is not the question here. In the case before us the people had no inherent power to legislate on the subject of local option prior to the adoption of article 1G, § 20. As early as the case of State v. Swisher, 17 Tex. 441, it was held that the Legislature could not delegate to voters or the people the power to pass laws, in the absence of some constitutional provision authorizing this. Judge Lipscomb, who rendered the decision, says: ‘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 form of government by our Constitution. Under our Constitution the principle of lawmaking is that the 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.’ This principle was reaffirmed in San Antonio v. Jones, 28 Tex. p. 19.-
“It was not until the adoption of article IS, | 20, in the Constitution of 1876 that power was given in the organic law authorizing the delegation of power to the qualified voters to enact local option in the territory therein mentioned.”

This opinion was written in 1906.

It is suggested that the opinion in Ex parte Massey was overruled in the cases of Edmanson v. State, 64 Tex. Cr. R. 413, 142 S. W. 887, and Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040. This statement should be qualified by the other facts that the part of the opinion in Ex parte Massey which discusses the Swisher Case, and which is above quoted, was not involved in either the' case of Edmanson or of Fitch, and that their conflict with the Blassey Case is upon other grounds and upon a different point. Even if it be granted that the Massey Case was overruled upon the particular question, the fact that a decision was rendered by this court as late as 1906 definitely adhering to the proposition that there was no legislative authority for the passage of a law like the pool hall law except under the constitutional provision which specially limited such authority to the passage of laws prohibiting the sale of intoxicating liquors is of weight by showing the status of the rule in the Swisher ease as recognized by this court at that time.

‘In holding the act in question valid, this court, in the majority opinions in Ex parte Francis, 72 Tex. Cr. R. 304, 165 S. W. 147, and in Ex parte Mode, 180 S. W. 708, cites many cases from the courts of other states supporting their conclusion, and makes copious quotations from them. An inspection of these opinions will disclose the fact that many courts in other jurisdictions have reached the opposite conclusion, and in volume 1, Ann. Cas. p. 374, there are cited cases from California, Delaware, Indiana, Iowa, and Washington -wherein similar laws have been held unconstitutional. We think that, considering the later cases decided by the courts in other states, the weight of numbers is in favor of the validity of similar laws. Enough has been said, however, to disclose the fact that there is a marked conflict in the decisions of other courts upon the subject. Many of them are rendered by divided courts, and courts of the same states have in many instances rendered conflicting opinions touching the matter. Some of them are under Constitutions having express provisions authorizing the passage of local option laws; some of them deal with subjects relating to municipal affairs. Without entering into a farther discussion of them, it suffices to say that none of them are in jurisdictions with a constitutional history like ours, nor in which there has been a legislative construction or judicial interpretation such as obtains in this state.

It is said in Cooley’s Const. Lim. p. 65, that:

“Rulings made under a similar legal system elsewhere may be cited and respected for their reasons, but are not necessarily to be accepted as guides except in so far as their reasons commend themselves to the judicial mind.”

To the same effect is the text in Cyc. vol. 11, pp. 749-753, and cases there cited, and also the case of Alexander v. Bank, 19 Tex. Civ. App. 620, 47 S. W. 840.

The force of rulings on the same legal principle by courts of the same jurisdiction should control its subsequent decisions unless it is demonstrated that the prior decision was unsound. On this subject Chancellor Kent says:

“Where a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a court of appeal or review and never by the same court except for very urgent reasons and upon clear manifestation of error; and if the practice were otherwise, it would be leading us in perplexing uncertainty as to the law.” Kent’s Commentaries, vol. 1, p. 475; Cooley’s Const. Lim. (6th Ed.) p. 64, and cases cited.

It is said in 36 Cyc. p. 1144, that:

“When a statute has been construed by the highest court having jurisdiction to pass on it, such construction is as much a part of the statute as if plainly written into it originally.”

And this rule applies to the construction of Constitutions. Emery v. Reef, 65 Cal. 351, 4 Pac. 200; McChesney v. Hager (Ky.) 104 S. W. 714; Eau Claire Nat. Bank v. Benson, 106 Wis. 624, 82 N. W. 604; Douglass v. Pike County, 10 U. S. 677, 25 L. Ed. 968.

The majority opinion of the Supreme Court of this state written by Chief Justice Phillips in the case of Ex parte Mitchell, 177 S. W. 953, rendered June 23, 1915, passing upon the statute in question, is as follows:

“The case presents the question of the constitutionality of the referendum act of the Thirty-Third Legislature authorizing the qualified voters of any county, or certain political subdivisions of a county, to determine by an election whether pool rooms or pool halls should be prohibited therein, and making it an offense to there operate or maintain them if the result of the election be in favor of their prohibition.
“The constitutionality of the act is assailed upon two grounds: (1)' That it amounts to a delegation by the Legislature of its own legislative power, imposed upon it by the Constitution, which it alone must exercise, and which it may not commit to any other agency, (2) that it authorizes the suspension of a general law of the state by the voters of a county, or subdivision of a county, namely, the statute licensing the operation of pool halls generally within the state, in violation of article 1, § 28, of the Constitution, which is, ‘No power of suspending laws in this state shall be exercised, except by the Legislature,’ an amendment of previous Constitutions which permitted such suspension under ‘the authority’ of the Legislature.
“The act is plainly unconstitutional, in our opinion, for both of these reasons. We largely rest our decision as to the first question upon State v. Swisher, 17 Tex. 441, where an act of the Legislature in no way dissimilar in its effect from this one was upon this ground held unconstitutional by the first Supreme Court of the state. That decision has never been overturned, and is the law upon the question. The second question is equally well settled, according to our view, by Brown Cracker & Candy Co. v. City of Dallas, 104 Tex. 290, 137 S. W. 342, Ann. Cas. 1914B, 504.”

We are unable to find anything in our constitutional and judicial history upon which to base a conclusion that the decision of the Supreme Court in following the rule in the Swisher Case is unsound. On the contrary, we have pointed out hereinabove much that, in our judgment, supports its correctness.

If, however, the reasoning of the decisions of other states upholding similar laws was so cogent as to demonstrate the unsoundness of the conclusion reached by the Supreme Court that the act in question is void under the rule in the Swisher Case, we would still be confronted with section 28, art. 1, of our Constitution, which reads, as follows:

“No power of suspending laws in this state shall be exercised, except by the Legislature.”

In previous Constitutions the corresponding paragraph read as follows:

“No power of suspending laws in this state shall be exercised except by the Legislature or under its authority.”

Section 8 of article 7355 of the Revised Statutes expressly permits the keeping of pool rooms or the use of pool tables for profit. In other words, by virtue of this article, the maintaining of a pool hall is not only legal, but it is expressly made so, and the provisions of this law, which is a general act of the Legislature, are in force throughout the state. Chapter 74 of the Acts of the Thirty-Third Legislature does not repeal this law, but it does provide that the maintenance of a pool hall shall be an offense punishable by a fine and imprisonment in any subdivision of the state in which by a majority vote of the voters therein the operation of pool halls shall be prohibited. In other words, the power of suspending the law which authorizes and licenses the maintenance of pool halls in any given territory is delegated by the act in question to the majority of the voters in the territory affected. The provision in the Constitution quoted has been interpreted by the courts of this state in the following eases: Burton v. Dupree, 19 Tex. Civ. App. 277, 46 S. W. 272; Arroyo v. State, 69 S. W. 504; Curtis v. Railway, 26 Tex. Civ. App. 305, 63 S. W. 149; Ex parte Ogden, 43 Tex. Cr. R. 532, 66 S. W. 1101; Ex parte Coombs, 38 Tex. Cr. R. 648, 44 S. W. 854; Ex parte Powell, 43 Tex. Cr. R. 391, 66 S. W. 298; Fay v. State, 44 Tex. Cr. R. 381, 71 S. W. 603; McDonald v. Denton (Civ. App.) 132 S. W. 825; Denton v. McDonald, 104 Tex. 206, 135 S. W, 1148, 34 L. R. A. (N. S.) 453; Brown Cracker & Candy Co. v. City of Dallas, 104 Tex. 290, 137 S. W. 342, Ann. Cas. 1914B, 504; Leach v. State, 36 Tex. Cr. R. 249, 36 S. W. 471; Crowley v. City of Dallas, 44 S. W. 865; Coombs v. State, 38 Tex. Cr. R. 648, 44 S. W. 854; Ex parte Pagg, 38 Tex. Cr. R. 573, 44 S. W. 294, 40 L. R. A. 212; Ex parte Wickson, 47 S. W. 643; Ex parte Anderson, 46 Tex. Cr. R. 375, 81 S. W. 973; Jannin v. State, 42 Tex. Cr. R. 631, 51 S. W. 1126, 62 S. W. 419, 96 Am. St. Rep. 821; T. & P. Ry. Co. v. Mahaffey, 98 Tex. 395, 84 S. W. 648; Ex parte Smythe, 56 Tex. Cr. R. 380, 120 S. W. 200, 23 L. R. A. (N. S.) 854, 133 Am. St. Rep. 976; Burch v. State, 56 Tex. Cr. R. 200, 120 S. W. 206; Phillips v. State, 56 Tex. Cr. R. 220, 120 S. W. 207; Adams v. State, 56 Tex. Cr. R. 199, 120 S. W. 208; McEarlin v. State, 123 S. W. 133; Ex parte Farnsworth, 61 Tex. Cr. R. 353, 135 S. W. 535, 33 L. R. A. (N. S.) 968. A complete analysis of all these cases will not be undertaken. Quotations from some of them, however, will illustrate the rule as declared in all of them.

In the case of Brown Cracker Co. v. Dallas, 104 Tex. 290, 137 S. W. 342, Ann. Cas. 1914B, 504, the question involved was the validity of an ordinance of the city of Dallas which segregated bawdyhouses, impliedly licensing them to be maintained in confined districts of the city. It was contended that the authority to pass this ordinance was conferred upon the city of Dallas by a special charter enacted by the Legislature. It was asserted, on the other hand, that under article 361 of the Penal Code bawdyhouses were prohibited by the state law, and the question resolved itself into whether or not the legislative power delegated to the city of Dallas to pass an ordinance segregating and licensing bawdyhouses would have the effect to authorize the city to supersede the operation of the provision of the Penal Code of the state in territory where they were permitted under the ordinance. The Supreme Court in the case mentioned, in an opinion rendered by Judge Brown, held that the legislative authority was exceeded in the charter mentioned. And the Court of Civil Appeals, at Austin, in the case of Burton v. Dupree, 19 Tex. Civ. App. 277, 46 S. W. 272, decided the same point in construing a similar provision in the charter of the city of Waco.

In the case of McDonald v. Denton, reported in 132 S. W. 823, and Denton v. McDonald, 104 Tex. 206, 135 S. W. 1148, 34 L. R. A. (N. S.) 453, the question involved arose out of the fact that a number of women in the city of Houston were prosecuted as vagrants on the ground that they were common prostitutes and that under the state laws they were guilty of the offense of vagrancy. They sought an injunction to restrain the prosecution on the ground that under an ordinance of the city of Houston, authorized in its charter granted by the Legislature, they were licensed in the locality in Houston in which the offense occurred. The injunction was granted by the district court, and upon appeal both the Court of Civil Appeals and the Supreme Court held that it should not have been granted, adhering to the rule announced in Brown Cracker Co. v. Dallas, supra, that the Legislature had no power to delegate to the city of Houston authority to suspend the operation of a state law in any part of the state.

The eases of Arroyo v. State, 69 S. W. 504, and Pay v. State, 44 Tex. Cr. R. 381, 71 S. W. 603, involved the right of the city of Dallas, acting under legislative authority, to pass an ordinance providing that a saloon might remain open during certain hours on Sunday, and it was held that, there being a statute in existence which required that the saloons should remain closed on Sunday, the attempt of the Legislature in the city charter to vest in the city of' Dallas the authority by ordinance to suspend the operation of the state law in any part of the state was vio-lative of the constitutional provision under consideration.

In the ease of Ex parte Ogden, 43 Tex. Cr. R. 531, 66 S. W. 1100, there was a prosecution for a violation of an ordinance of the city of Beaumont; the offense being that he permitted the operation of a turf exchange or selling pools on horse races in his place of business. It was claimed that the ordinance was passed under legislative authority. This court held the ordinance void, because in conflict with the state law which licensed turf exchanges and pool selling on horse races. The opinion cites numerous authorities.

Granting the correctness of these decisions construing section 1, art. 2S, of the Constitution, the principle in the pool hall law is unsound. ' They so definitely establish the rule of construction in this state applying to the section of the ’Constitution mentioned that overruling them could only be justified, as said by Chancellor Kent, “upon very urgent reasons and clear manifestation of error.” It is conceived that the reasons supporting the decisions of this state under the constitutional provision that the Legislature has no power to delegate its authority to suspend laws either to the people or to other agencies of government are sound. If the contrary were true, and the principle sought to be applied in the pool hall law became a fixed rule in this state, it would be possible for the Legislature to delegate to the people of a given community the right to suspend the operation of the various police regulations adopted by the Legislature. The question, for example, as to whether the Sunday laws or the pure food laws or other police regulations of the state would be operative in given localities would not be dependent upon the act of the Legislature which passed the laws for the government of the entire state, but communities and subdivisions of the state would be permitted by popular vote to determine whether or not they would be governed by the law in question. The framers of the Constitution when they wrote section 28 of article 1 of the Constitution, abandoning the provision theretofore existing that laws might be suspended by the authority of the Legislature, and asserted in the new Constitution that they could be suspended alone by the Legislature, were not without foresight as to the mischievous consequences that might flow from extending to the Legislature the power to delegate its authority to suspend laws. Whatever considerations induced the framers of the Constitution to adopt the provision mentioned, it is a part of the organic law of the state; it has been upheld by the judicial decisions of the state and declared to inhibit the passage of laws such as chapter 74 of the Acts of the Thirty-Third Legislature.

The research, learning, and power of expression exhibited by Judge Davidson of this court in writing the dissenting opinion in the cases of Ex parte Francis and Ex parte Mode, above mentioned, have so well covered the points considered in this opinion that the writer might well have refrained from going into a discussion of the subject. The importance of the question and the natural and proper reluctance of courts to declare statutes void have impelled the writer to review the subject, and, having therefrom reached the conclusion stated, the judgment of the lower court is reversed, and the causé ordered dismissed.

PRENDERGAST, J.

(dissenting). Judge Harper, in Ex parte Francis, 72 Tex. Cr. R. 304, 165 S. W. 147, and Ex parte Mode, 180 S. W. 708, has so completely, both on reason and on authority, demonstrated the constitutionality of our pool hall law, it is entirely useless for me to again discuss the question. In my judgment, the opinions by him in those cases are unanswered and unanswerable. If my Brethren are not convinced by those great opinions, and by the opinions of the great judges and courts of every other state in the United States cited by him, then “neither will they be persuaded though one rose from the dead.”

Evidently Judge MORROW has overlooked a universal and cardinal principle of the powers’ of the state Legislatures, and specially of our state. And that is, as expressed by Presiding Judge White, in Holley v. State, 14 Tex. App. 511:

“The state Constitutions are only limitations upon the complete power with which otherwise the legislative department of the state was vested in its creation.”

He preceded that principle by stating:

“The distinguishing characteristic difference between the federal and state Constitutions is that the Constitution of the United States is but ■a grant of legislative power, and the Congress can, in framing laws, only exercise such authority as is granted, whilst, on the other hand, state Constitutions are only limitations upon the complete power with which, otherwise, the legislative department of the' state was vested in its creation.”

He then quoted Judge Cooley in his work on Constitutional Limitations (4th Ed.) p. 210, wherein he said:

“Congress can pass no laws but such as the Constitution authorizes, either expressly or by implication, while the state Legislature has jurisdiction of all subjects on which its legislation is not prohibited.”

And, further quoting Judge Cooley, he said:

“The lawmaking power of the state, * * * recognizes no restraints, and is bound by none, except such as are imposed by the Constitution. That instrument has been aptly termed a legislative act by the people themselves in their sovereign capacity, and is therefore the paramount law. 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.”

Our own Supreme Court has repeatedly held exactly the same doctrine. In Brown v. City of Galveston, 97 Tex. 9, 75 S. W. 492, it is held:

“Except in the particulars wherein it is restrained by the Constitution of the United States, the legislative department may exercise all legislative power which is not forbidden expressly or by implication by the provisions of the Constitution of the state of Texas. Lytle v. Halff, 75 Tex. 132 [12 S. W. 6101; Harris County v. Stewart, 91 Tex. 143 [41 S. W. 650]; Cooley’s Const. Lim. 200, 201.”

Every court in the land and every textbook writer on the subject is to precisely the same effect as this court and our Supreme Court. There can be no question about this cardinal rule being the law in this state.

Section 20, art. 16, of our Constitution is not a delegation of power to the Legislature but is an absolute command to the Legislature that it shall exercise a power it unquestionably had. The language is, “The Legislature shall at its first session enact a law,” not that it may do so. Again, in section 42, art. 3, our Constitution says, “The Legislature shall pass such laws as may be necessary to carry into effect the provisions of this Constitution.” In section 56, art. 3, is a long enumeration of subjects, forbidding the Legislature to pass any local or special law upon them. The language is, “The Legislature shall not." Then there are other provisions unnecessary to specially mention where the Legislature is prohibited from doing some other specific things. It was by reason of these express prohibitions that it became necessary for the Constitution, for instance, in section 23, art. 16, to provide in effect that said prohibitions' did not' prevent the Legislature from passing stock laws for particular portions, sections, and counties of the state. That section is no delegation of power. It is simply excepting that subject 'from the said other general prohibition provisions. So of every other matter mentioned by Judge MORROW in his opinion wherein the Legislature has submitted and the people amended certain provisions of our Constitution. In each instance mentioned by him the amendment became necessary, not because the Legislature did not have power to enact such laws if it had not been expressly prohibited from doing so ; it became necessary to amend to get the authority, because the power and authority had been expressly denied by the constitutional provisions which were amended. Not one of these matters, by implication or otherwise, tends to show that the' Legislature, unless prohibited by the Constitution, did’ not have power to enact these laws. The amendments became necessary and proper because the constitutional provision amended expressly prohibited that, and the Legislature, of course, with that express prohibition were denied the power, and in order to exercise it they had to submit an amendment to the people and have them to adopt it so as to authorize the Legislature to legislate on the particular subjects mentioned..

Judge MORROW in his opinion herein cites as authority, and quotes the opinion of two of our Supreme Court Judges on this question in Ex parte Mitchell, 177 S. W. 953. Surely he has overlooked the decision of that court in the later case of Middleton v. Texas P. & C. Co., 185 S. W. 556, which is the very reverse of the Mitchell Case, and utterly destroys the Mitchell Case as any authority whatever. State v. Clark, 187 S. W. 778.

This case should be affirmed, not reversed. I dissent.
      <E=»For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes