Ex Parte Mode

• Decision Date: 13 October 1915
• Docket Number: (No. 3705.)
• Citation: 180 S.W. 708
• Parties: Ex parte MODE.
• Court: Texas Court of Criminal Appeals

180 S.W. 708

Ex parte MODE.

(No. 3705.)

Court of Criminal Appeals of Texas.

October 13, 1915.

Dissenting Opinion, November 24, 1915.

John Mode was arrested on a complaint charging him with running a pool hall after an election in a county, precinct, etc., had been legally held and pool halls had been prohibited under the provisions of an option statute, and he sues out an original writ of habeas corpus. Relator remanded.

Lyles & Lyles and Wallace & Moore, all of Cameron, for relator. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

The sole question involved in this case is the constitutionality of what is known as the "pool hall law," being chapter 74 of the Acts of the Thirty-Third Legislature. The law provides for a petition to the commissioners' court, and the court is required by the law to order the election when the petition is signed by the requisite number of voters. The law provides how the election shall be held, and how the result shall be declared. In fact, the law, as passed by the Legislature, is minute in all its details, and provides for everything that is necessary to be done and is mandatory in its provisions. The law then provides:

"When any such election has been held and has resulted in favor of the prohibition of the operation and maintenance of pool halls within the territory for which the election is held, any person who shall thereafter, within the prescribed bounds of said territory, operate or maintain a pool hall such as is defined herein shall be subject to prosecution, and on conviction shall be punished by a fine of not less than twenty-five and not to exceed one hundred dollars, or by confinement in the county jail not less than thirty days nor more than one year, and each day such pool hall or pool room is run shall be a separate offense." Section 13.

It is thus seen that all the voters can do or determine is whether or not they will pass their county under the provisions of the law as enacted by the Legislature. This is an "option" given to the voters of each county by the law enacted by the Legislature, and nothing more.

As said, there is nothing to pass on in this case other than the constitutionality of the law, the agreement on file stating:

"That said John Mode [relator] did operate a pool hall, as charged in the information, and, unless said law is unconstitutional, he is not entitled to the writ of habeas corpus."

This question was before us in the case of Ex parte Francis, 72 Tex. Cr. R. 304, 165 S. W. 147, and after a most careful and thoughtful consideration we upheld the validity of the law, Judge Davidson, however, entering a dissent. Since the rendition of that opinion our Supreme Court, in the case of Ex parte Mitchell, 177 S. W. 953, has held the law invalid. Judge Hawkins entering his dissent to such holding. The opinion of the majority of the Supreme Court base their holding on 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, * * * 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 * * * shall be exercised, except by the Legislature.'"

Judge Davidson's dissent in the Francis Case, supra, was also based upon these grounds.

As to the rule of law that the Legislature cannot delegate its power to either enact a law or suspend a law, we agree with the Supreme Court, and so held in the case of Ex parte Francis, supra, holding in that case:

"If the act in question delegated the power and authority to suspend a law of the state, or to make a law, of course it would be unconstitutional."

So the difference in the opinions of the Supreme Court and this court is not whether the Legislature has the power to delegate its power and authority, in the particulars named, but by the law enacted by the Legislature known as the "pool hall law" has the Legislature delegated its power to enact a law or suspend a law of the state? That court placed the construction on the law that it did do so; while we held it did not do so. Having the utmost respect for the ability of the members of the Supreme Court so holding and our senior judge, Judge Davidson, when this application was presented, we granted the writ and set it down for a hearing in order that we might again have the question presented by eminent counsel, and that we might give it more careful thought and study. We regret that our Supreme Court has not as yet filed its opinion, giving its reasons why it thought a proper construction of the act would show a delegation of the power and authority of the Legislature. In the short opinion filed there is a mere statement that they so hold, yet do not point out wherein the act does do so, and neither does the dissenting opinion of Judge Davidson in the Francis Case, supra. Not being favored with their reasons for so holding, during our vacation just closed we have studied the text-books and the decisions of all the other states in the Union, and we find not only is the great weight of authority with the holding of this court that such an act as the "pool hall law" does not delegate the power and authority of the Legislature to enact a law or suspend a law, but ascertain that all the text-books of any note so hold, and the courts of last resort of every state in the Union (with possibly one solitary exception) so hold, and we are confirmed in our opinion that the law in question does not delegate the power and authority of the Legislature in either of the respects named, and that the law is valid. It is true that some of the earlier decisions did so hold, but upon a more mature thought each of the courts so holding has receded from such conclusion and overruled their earlier decisions.

Those who contend that a "local option law" is a delegation of the authority and power of the Legislature to enact a law rely mainly upon the first case in which it was so held (Parker v. Commonwealth, 6 Pa. 507, 47 Am. Dec. 480), but the Pennsylvania Supreme Court thereafter overruled that case, and in the case of Locke's Appeal, 72 Pa. 494, 13 Am. Rep. 716, in a clear and lucid opinion, points out the error in the Parker Case, and so aptly discusses the question there and here involved we copy at length from the opinion in the latter case. It holds:

"What did the Legislature in this section submit to the people, and what did they not submit? This is quite as clear as any other part of the act. Each elector is to vote a ticket for license or against license. He is allowed by the law to say, `I am for the issuing of license,' or `I am against the issuing of licenses,' and thus to express his judgment or opinion. But this is all he was permitted by law to do. He declared no consequences, and prescribed no rule resulting from his opinion; nor does the majority of the votes declare a consequence. The return of a majority is but of a mere numerical preponderance of votes, and expresses only the opinion of the greater number of electors upon the expediency or inexpediency of licenses in this ward. When this is certified by the return, the Legislature, not the voters, declares `it shall (or it shall not) be lawful for any license to issue for the sale of spirituous liquors.' Thus it is perfectly manifest this law was not made, pronounced or ratified by the people; and the majority vote is but an ascertainment of the public sentiment — the expression of a general opinion, which, as a fact, the Legislature have made the contingency on which the law shall operate. When the law came from the halls of legislation, it came a perfect law, mandatory in all its parts, prohibiting in this ward the sale of intoxicating liquors without license, commanding an election to be held every third year to ascertain the expediency of issuing licenses, and, when the fact of expediency or inexpediency shall have been returned, commanding that licenses shall issue or shall not issue. Then what did the vote decide? Clearly not that the act should be a law or not be; for the law already existed. Indeed, it was not delegated to the people to decide anything. They simply declared their views or wishes, and when they did so, it was the fiat of the law, not their vote, which commanded licenses to be issued or not to be issued.

"Now, in what respect does a vote upon license or no license, in a particular ward or township, differ from a vote whether a new township shall be continued or annulled, or from a vote to determine whether a seat of justice shall be continued where it is or be removed to another place, or from a vote for or against a subscription by a city to the stock of a railroad company, or from a vote of the people of a district for or against a consolidation of it with a city? Yet in all these instances (to which reference will be made hereafter) it has been decided that the determination of these questions by a vote of the people interested in them, and an enactment of law dependent on the result of this vote, are not a delegation of the lawmaking power to the people, but a submission only of the expediency of the proposed measure. This is simply common sense; for in none of the instances did the Legislature commit to the people the making of the law, but merely the province of determining a matter important to wise and judicious legislation — something upon which the Legislature deemed it proper its own act should wait, and then should operate accordingly. The wit of man cannot draw a well-grounded distinction between the result of a vote upon license in a township and the result of a vote upon the existence of a township, and the removal of a courthouse, or a subscription to stock, or the consolidation of...