Ex Parte Francis

• Decision Date: 07 January 1914
• Citation: 165 S.W. 147
• Parties: Ex parte FRANCIS.
• Court: Texas Court of Criminal Appeals

165 S.W. 147

Ex parte FRANCIS.

Court of Criminal Appeals of Texas.

January 7, 1914.

On Motion for Rehearing, February 11, 1914.

Dissenting Opinion, March 12, 1914.

Charles Francis was arrested on a complaint charging that he ran a pool room and billiard hall in a certain precinct after an election had been legally held, and pool rooms and billiard halls prohibited, under the provisions of a statute, and he sued out an original writ of habeas corpus. Relator remanded.

Lightfoot, Brady & Robertson, of Austin, for relator. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

A complaint was filed against relator charging that he ran a pool room and billiard hall in justice precinct No. 1 of Wilbarger county, Tex., after an election had been legally held, and pool rooms and billiard halls prohibited, under the provisions of chapter 74 of the Acts of the Thirty-Third Legislature. When arrested he sued out a writ of habeas corpus before this court, which was granted, and the cause set for hearing on October 8th. On that day the cause was ably argued by counsel, and very interesting and thorough briefs have been filed with the papers.

On account of the importance of the questions involved, we have given much study and thought to the propositions involved in the case. The principal question involved in the case is: Can the Legislature enact a law which is to become effective in any given territory in the future upon the result of an election therein authorized to be held? The pool room law as enacted is what in legal phraseology is termed a "local option law," and the question to be decided is: Can the Legislature enact this character of legislation where there is no specific authority to do so found in the Constitution? The Constitution specifically commands local option laws to be passed in regard to prohibiting the sale of intoxicating liquors, to prohibit stock from running at large, and in some other instances; but there is no command found in that instrument requiring the Legislature to enact a local option law in regard to pool rooms and billiard halls, and it is contended that, as there is no specific authority granted in that instrument to pass that character of law as regards pool rooms and billiard halls, then no such authority exists in the Legislature to do so.

This is a question about which much has been written, and the decisions of many states are in conflict, and the decisions of our own state are far from satisfactory. Relator cites us to the cases of State v. Swisher, 17 Tex. 441, and Ex parte Farnsworth, 61 Tex. Cr. R. 353, 135 S. W. 535, 33 L. R. A. (N. S.) 968, and 61 Tex. Cr. R. 342, 135 S. W. 538, as holding that the Legislature is without authority to enact this character of legislation in the absence of express authority so to do being found in the Constitution. We do not think the Farnsworth Case, supra, is in point, because the question involved in that case is not the same question here presented. While it may be said to be true that some expressions used in that case would seemingly sustain his contention, yet when the case is analyzed it is found that the questions there presented are not involved in this case. In the Swisher Case, supra, however, if we take the language there used in its broadest sense, it would support relator's contention. In the Swisher Case, supra (decided in 1856), the Legislature had enacted a law authorizing an election to be held in each county in Texas to determine whether or not the sale of intoxicating liquors should be permitted or prohibited in such county. Swisher was indicted for retailing liquors without paying the tax levied under prior laws, and he pleaded the act in question in bar of such prosecution. His plea was sustained by the trial court, and the court holds that the trial court was in error in so holding; but on account of defective record the appeal was dismissed, and it was unnecessary to pass on any other question. However, in writing the opinion, Judge Lipscomb uses the following language: "The question presented is not now of very general interest, as the act, whether constitutional or not, has been repealed. We shall therefore not give to it the elaborate investigation that we would otherwise have felt called on to bestow on it. * * * The mode in which the acts of the Legislature are to become laws is distinctly pointed out by our Constitution. After an act has passed both houses of the Legislature, it must be signed by the speaker of the House and the president of the Senate. It must then receive the approval of the Governor. It is then a law. But, should the Governor veto it and send it back, it can only become law by being passed again by both houses by a constitutional majority There is no authority for asking the approval of the voters at the primary elections in the different counties. It only requires the votes of their representatives in a legislative capacity. But, besides the fact that the Constitution does not provide for such reference to the voters to give validity to the acts of the Legislature, we regard it as repugnant to the principles of the representative government formed by our Constitution. Under our Constitution, the principle of law-making is that laws are made by the people, not directly, but by and through their chosen representatives. By the act under consideration, this principle is subverted, and the law is proposed to be made at last by the popular vote of the people, leading inevitably to what was intended to be avoided, confusion and great popular excitement in the enactment of laws."

It is thus seen that a decision of the question involved in this case was not necessary to a disposition of the case, and, as stated by the learned judge who wrote it, he did not give the question that investigation he would otherwise have felt called upon to give it, and this opinion would be what is termed but "obiter dictum." However, had this rule of decision been followed by our Supreme Court, we would feel in a great measure bound by it; but in no instance since its rendition has the Supreme Court adhered to what is therein stated to be the law, if we take the words used in their broadest sense. The opinion correctly states that this is a representative form of government, and that, while the laws are made by the people, yet they are enacted by and through their chosen representatives. To this principle or rule of law we do not think there has ever been or can ever be any dissent. The fallacy in the opinion, if fallacy there be, is in improperly stating the premises, and, in doing so, the conclusion drawn therefrom would necessarily be erroneous. The opinion is based on the proposition that the law as it left the hands of the Legislature was not a complete enactment—was not a law, but other steps were necessary to be taken before the act became the law of the land. This is the incorrect premise. The act as passed by the Legislature was a completed enactment. The law, it is true, may be said to have adopted what is termed the "local option system" in a certain matter of police regulation. The act of accepting or rejecting it in any given territory forms no part of its enactment as a law; this right to vote on its acceptance in any given territory is derived and flows from the law as passed by the Legislature, and whether or not it is ever accepted by the people of any given county in no manner affects the validity of the law. It would still be the law of the state, and might be taken advantage of at any time if the people of any county saw proper to do so. It is a right given by the law, and so long as the law remains on the statute books the right exists.

As said before, if our Supreme Court, since the rendition of the opinion in the Swisher Case had followed it, we would be inclined to do so; but every time since then, when the question involved in that case has been before our Supreme Court, while not in specific terms overruling it, yet it has as effectually done so as it is possible to do so without specifically so stating.

In the case of Stanfield v. State, 83 Tex. 321, 18 S. W. 578, this same question again came before the Supreme Court. The Legislature had passed a law creating the office of county superintendent of public instruction, authorizing counties to accept or reject its provisions, and if accepted, if later in the wisdom of the commissioners' court such action was unwise, the county was given the right to abolish the office, and reject the provisions of the law. This was a "local option law," and was sustained by the Supreme Court. The only difference in that law and the pool hall law is that in the county superintendent law the accepting or rejecting of it was left to the commissioners' court of the various counties, while in the pool hall law the accepting or rejecting of it is left to a vote of the people to be affected by its provisions. If the county superintendent law was a complete enactment, then this law would also be. In passing on the case, Judge Henry, speaking for the court, says: "Our Constitution and statutes each provide for the adoption of laws in particular localities according to and dependent upon the expressed will of the people to be affected, and such statutes have not in every instance been expressly directed by the Constitution. It would be tedious and would serve no useful purpose to undertake here to enumerate all instances of such legislation. A city containing 1,000 inhabitants or over may by a vote of its council accept or reject the general incorporation law of this state for cities and towns. The inhabitants of a town or village may by vote accept or reject the incorporation act provided for them (Rev. Stats. 1879, c. 11, tit. 17), and, having once incorporated, such towns and villages may by their own vote abolish the corporation, including the offices. * * * When the extended area of this state is considered, as well as the diversity of the pursuits...