State v. Swisher
| Decision Date | 01 January 1856 |
| Citation | 17 Tex. 441 |
| Parties | THE STATE v. GREEN H. SWISHER. |
| Court | Texas Supreme Court |
See this case for a discussion of the constitutionality of laws which refer to a vote of the people for their approval, before they shall take effect as laws.
Appeal from Hays. It did not appear from the transcript who presided in the court below.
The act of the legislature referred to in the opinion was as follows:
An act regulating and restricting the sale of spirituous liquors.
Section 1. 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.
Section 2. That it shall be the duty of the governor to order an election to be held in each and every county in 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 liquor 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.
Section 3. That in the event of an election being held in any county or counties in this state, in the manner and for the purpose mentioned in the second section of this act, and decided in favor of the license, it shall be the duty of the chief justice of any county so voting, upon the petition of any fifty persons over the age of twenty-one years, and citizens of said county, to order a second election for said purpose, as directed in said second section of this act, at any time after one year from any former election for said purpose, and if at said election a majority of the votes cast shall be found to have been cast against said license, then there shall be no more license granted or issued to any person or firm to sell spirituous or vinous liquors in less quantity than one quart in said county.
Section 4. That any person or firm violating the provisions of this act shall be guilty of an offense, and be subject to a fine of not less than ten nor more than twenty dollars for each and every offense so committed, recoverable before any court of competent jurisdiction of the same, and said fine when so collected shall be paid over to the county treasurer for the use of the county where said offense was committed.
Passed February 11, 1854.
Attorney General, for appellant. Legislation to which this act is supposed to be similar in structure has, within the last two or three years, undergone judicial consideration in many of our sister states, and, I confess, the legislative action to which I allude has been condemned by a majority of the courts and judges who have sat in judgment upon it. The cases to which I refer are Bradley v. Baxter, 7 How. N. Y. Pr. 18, in Livingston's Law Magazine for June, 1854; Parker v. Com. Penn., 6 Bar. 507; Rice v. Foster, 4 Har. 479; Johnson v. Rich, 9 Barb. 630; The People v. Collins, Sup. Court of Michigan, in Am. Law Register, August, 1854, and the dissenting opinion of two of the judges of the supreme court of Pennsylvania in Parker v. Com., Penn. Law Journal for March, 1848. The opinion of the supreme court of Vermont, I understand to be adverse to this train of decisions. Most of the opinions against these acts are those of bare majorities of the judges. In the Michigan case there was an equal division of eight judges. Without feeling that these decisions are at all in point on this occasion, I yet beg to commend to the attention of the court the dissenting opinion already referred to. Its powerful reasoning and careful review of very many acts of congress and of the states, similar in their structure, are well calculated to countervail the arguments and authority of the above cases, and to present the question discussed in them, if ever it shall come to us, as res integra. We have access to most, if not all, of these majority opinions; but as they all discuss in the same manner acts of precisely the same structure and mode of manufacture, it will be sufficient for my purpose of showing that they are not in point here, to ask the attention of the court to the case of Bradley v. Baxter (N. Y.), in which the others are invoked as authority and as establishing the same proposition. In that case the act reviewed and adjudged to be unconstitutional, “because it was not passed by the legislature, but by the people, upon a transfer of the legislative power to them by the body to which the constitution had confided it,” contains in its 10th section this provision: “The electors shall determine by ballot, at the annual election to be held in November next, whether this act shall, or not, become a law.” Here if the election had not been held, or the popular vote taken, the act would clearly not have become a law, even if we admit the constitutionality of this mode of legislating. The friends of the act held the affirmative, and were obliged to carry it through the popular ordeal by the very terms of its creation and existence, or it could never have had any chance of going into effect as to its substantial provisions. Reject the election, and you destroy the act, which was by its very terms never to be a law but upon a certain result of the election.
But what is the structure of our act in reference to the point discussed in the cases cited above? Its first section marks a difference between its framing and that of the acts considered in these cases, which conclusively and palpably distinguishes it from them in the particular upon which the question of their constitutional validity is admitted, on all hands, to turn. “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,” etc. Here is a positive and complete self-sustaining prohibition (at least) of the issuance of retail liquor licenses wholly independent of a submission to the people or of the election. Unlike the acts considered in the cited adjudications, the substantial provision of this clause takes immediate effect from the moment of the passage of the act; and instead of its being dependent upon the result of a future election for the chance of ever becoming a law, the only possible effect the election could produce on it would be to arrest the operation, wherever its result might be adverse, of a distinct, mature and perfect legal provision in force long before the election itself, by the law of its existence, could take...
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Ex Parte Myer
...and senator and Legislature itself from the territory of such schools of learning. (4) As our Supreme Court in 1856 had held (State v. Swisher, 17 Tex. 441) that the Legislature could not pass a statute, "refer it to the voters for their ratification before it became a law," because such ma......
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Ex Parte Mode
...by the California Supreme Court. The only other case cited in the opinion of our Supreme Court in the Mitchell Case is that of State v. Swisher, 17 Tex. 441, which holds that the Legislature cannot delegate its power to enact laws. No one questions that rule of law. In the Swisher Case it i......
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...to a popular vote of the whole people. People v. Stout, 23 Barb. 349; State v. Wilcox, 45 Mo. 458; State v. Field, 17 Mo. 529; State v. Swisher, 17 Tex. 441; State v. Beneke, 9 Iowa, 203; Bank v. Brown, 26 N. Y. 467." The same author, in further illustration of the rule, points out that in ......
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...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 holdin......