Lyle v. State

• Decision Date: 28 February 1917
• Docket Number: (No. 4309.)
• Citation: 193 S.W. 680
• Parties: LYLE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 680

193 S.W. 680

LYLE v. STATE.

(No. 4309.)

Court of Criminal Appeals of Texas.

February 28, 1917.

Dissenting Opinion April 6, 1917.

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 to 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 cast 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 had 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 commissioners' 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 case 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. Foster, 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. 186]) 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...