which places the law adopted by them above legislative authority, as if it had been embraced in the Constitution." State v. Texas Brewing Co., 106 Tex. 121, 157 S. W. 1166. "Dicta, or even matters of argument not necessary to the decision of the question before the court, as is well known, is never regarded as deciding the law of the case, or as furnishing a rule of action for the court itself in which the case is pending, or as even binding upon the judge by whom the opinion was prepared." Smith v. Alston, 40 Tex. 141. not indicate that the expression referred to The subsequent decisions of this court do was regarded as an authoritative decision of the question. Among the cases cited in the opinion in the Lewis Case are cases following, From what has been said it is apparent that in the greater part of the state there is in force prohibition of the sale of intoxicating liquors under a law which is not within the control of the Legislature, because it and its provisions, by the exercise of primary sovereignty vested in the people of the localities by the Constitution, has been fixed in a manner depriving the Legislature of the by special reference, the Dawson Case, and power to annul or change it without the con-written by Judge Hurt. The case of Ex parte sent of the people adopting it, and among the Brown, 38 Tex. Cr. R. 295, 42 S. W. 554, 70 provisions so fixed is that which declares that the law shall remain in force only until Am. St. Rep. 743, in the decision of which the people of the district shall decide other- Judge Hurt participated, referring to section 20 of article 16 of the Constitution, says: wise; the right to so decide at an election being expressly stated in the law adopted. The principles fixed in our jurisprudence, in the manner stated by the court in Lewis v. State, are incompatible with the exercise of the power attempted in the act in question. They are consistent only with the theory that the clause of the Constitution mentioned so restricts the general power of the Legislature that, while it may pass and enforce laws regulating and restricting the sale of intoxicating liquors, it can only prohibit them in the manner prescribed by the section of the Constitution in question; that is, by a vote of the people affected. We are referred to the case of Bell v. State, 28 Tex. App. 96, 12 S. W. 410, as an authority for the contrary view. The prosecution in that case was for pursuing the occupation of a liquor dealer without posting his license in a conspicuous place. No fault can be found with the decision of the court that there was nothing in section 20 of article 16 of the Constitution which was an impediment to the validity of the law in question. The Legislature has now, and at all times since the Constitution was adopted, the power to forbid the saloon business, and the power to destroy it implies a lesser power of imposing conditions upon its conduct. The law involved in the Bell Case was not a prohibition law, but a regulation of the sale of intoxicating liquors. Regulation makes the sale conform to prescribed rules; prohibition interdicts it altogether for beverage purposes. Century Dict. vol. 6, p. 505; Joyce on Intoxicating Liquors, § 139; Ruling Case Law, vol. 15, pp. 258-262; Bowman v. State, 38 Tex. Cr. R. 14, 40 S. W. 796, 41 S. W. 635; Ex parte Hollingsworth, 203 S. W. 1102. The expression used by Judge Hurt in writing the opinion in the Bell Case, supra, to the effect that the clause in the Constitution mentioned would not prevent the Legislature from passing a law prohibiting the sale of liquors throughout the state, was upon a question not involved. It is in a class of remarks treated in all jurisdictions as dictum, of which our Supreme Court said: "It occurs to us that this expression of the will of the people on the subject is exclusive of any other method to be pursued by the Legislature. Whatever may be said as to the power of the Legislatures of other states, with no express provisions of their Constitutions on this subject, to legislate in regard to the liquor traffic under the general police power, the same does not apply with us. We have an express provision on the subject, and that provision was intended to prescribe a method of dealing with the question, and to exclude any other rule or method, at least so far as local option territory is concerned." In Ex parte Vaccarezza, 52 Tex. Cr. R. 109, 105 S. W 1119, a case involving the construction of a repealing clause of a license law, Judge Brooks, writing the opinion, by way of argument says: "No one seriously insists that the Legislature should pass a prohibition law applying to the whole state without first submitting to the people and having them adopt a constitutional amendment authorizing said act," -adding that whether a constitutional amendment would be necessary was a question upon which the legal profession entertained conflicting views. Prior to the passage of the present act the treatment of the subject by the legislative department of this state has been indicative of the view that the clause in the Constitution was an impediment to the estab lishment of prohibition throughout the state by legislative enactment. This conclusion is drawn from the fact that in 1887, and again in 1911, the Legislature, possessing the requisite two-thirds majority, enacted a joint resolution referring to the people a proposed amendment to the Constitution the purpose of which was to establish state-wide prohibition of the sale of intoxicating liquors. [1, 2] The convention framing the Constitution considered the various methods of dealing with the liquor traffic, including regulation, prohibition, and local option. See Const. 1875, pp. 80, 103, 556. These methods were well understood at the time. Freund on Police Power, p. 204; 23 Cyc. pp. 76–78. Ju shartel ш The Constitution, containing a positive direction, to the Legislature to pass a law whereby the people, in the counties and subdivisions named, might by majority vote decide from time to time whether the sale of intoxicating liquors should be prohibited within their limits, contains an implication against the Legislature doing anything which would render inoperative and ineffectual the law which the Constitution commands shall be passed. Cooley, Const. Lim. (8th Ed.) p. (4th Ed.) p. 78; Parks v. West, 102 Tex. 11, 111 S. W. 726. The language selected by the framers of the Constitution, when its meaning is clear, con: trols the court in interpreting it. 8 Cyc. 732. The command to the Legislature in section The terms of section 20, art. 16, are not sus-20, art. 16, supra, to pass a law whereby the ceptible of the construction that the Legis- voters may determine whether the sale of lature was simply given the permission to intoxicants shall be prohibited, defines the enact a local option law. It is mandatory. circumstances under which prohibition of Holley v. State, 14 Tex. App. 515; Cooley on such sales may be made effective. These cirConst. Lim. (4th Ed.) p. 94. cumstances require the act of both the Legislature and the voters; neither can effect the object without the co-operation of the other. If the law in question be sustained, the powers vested in the people of the localities by the Constitution cannot be exerted. It is in opposition to the exercise of these powers, and destroys the vitality of the clause in the Constitution. The power to annul, suspend, or render dormant this part of the Consti tution would carry with it the power to overturn any of its provisions. The framers of the Constitution did not intend that the representatives of the districts of the state should have the authority to set at naught the powers committed to the people of the localities named. On the contrary, the Constitution points out a uniform and exclusive means of establishing prohibition of the sale of intoxicating liquors, withdrawing the subject from the political ferment which would result from its debate at each recurring session of the Legislature. The subject was made one of local self-government, within the control of the people of the localities 127. [3] "Where the means for the exercise of a granted power are given, no other or different means can be implied as being more effective or convenient." 8 Cyc. 742. “Being simply a chart containing limitations upon power, whenever the Constitution declares how power may be exercised over any subject, then no power can be exercised over that subject in any manner not clearly within the plain import of the language of the Constitution." Holley v. State, 14 Tex. App. 515. whole people of the state should by their votes change the Constitution. "Since the Constitution is intended for the observance of the judiciary as well as the other departments of government, and the judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands." Ruling Case Law, vol. 6, p. 72. The relator is ordered discharged. The means in our Constitution named for establishing prohibition of the sale of intoxicat-named, to remain so until such time as the ing liquors is that the Legislature shall pass the law and the people in the localities named may adopt it. The people of the localities named are given, by the Constitution, a part of the legislative power, the power to decide whether the Legislature shall prohibit the sale of intoxicating liquors in their localities, and the power to decide whether it shall continue in force. The right to make these decisions, being conferred by the Constitution upon the people mentioned, can be exercised by them only. The fact that they are vested with the power to make the decision implies that the decision of the question is not left with the Legislature. In the absence of the clause of the Constitution in question, there would be no restriction upon the police power vested in the Legislature to prohibit the sale of intoxicating liquors. Whether it should be prohibited or permitted would be a matter of legislative discretion. If the power of the Legislature to pass laws affecting the whole state is not abridged by the clause in question, its right to pass a license law effective throughout the state cannot be denied. It does not possess that power. State v. Texas Brewing Co., 106 Tex. 121, 157 S. W. 1166. "When the Constitution defines the circumstances under which a right may be exercised, the specification is an implied prohibition against legislative interference to add to the condition." Cooley, Const. Lim. PRENDERGAST, J. (dissenting). The state-wide statute prohibiting the sale of intoxicating liquors, without any doubt, is constitutional, valid, and legal in every respect. There is no provision in our Constitution which directly or by implication prohibited or prevented the Legislature from enacting it. It is common knowledge-known by all— that the Legislature of every state in the United States of America, and this state, has the undoubted police power and authority to prohibit the sale of intoxicating liquors as a beverage within its whole bounds-statewide-unless there is some provision in its Constitution which clearly forbids it. This has been expressly held many times by the Supreme Court of the United States, and by the Supreme Court of every state which has passed upon the question, and by every lawwriter who has written upon the subject. The Legislature has this police power and authority as a necessary incident of the sov moment thought or imagined that they were thereby depriving the Legislature of the necessary police power and authority to prohibit the sale of such liquors all over the state whenever it deemed it necessary or proper, for they knew that the sale and resultant use of such liquors was the greatest curse to mankind. If they had so intended they would have said so in plain and clear language, like they did in many of the sections from 30 to 58, art. 3. ereignty of the state the power of self-pres- and the people in adopting it, never for one ervation, and protection of its men, women, and children from the awful curse of such liquors; for, "by the general concurrence of opinion of every civilized and Christian community, there are few sources of crime and misery to society equal to the saloon. The statistics of every state show a greater amount of crime and misery attributable to the use of such liquor obtained at saloons than to any other source." And because "the confederated intelligence of mankind has come to realize that the sale and use of such liquors is a profligate waste of the material resources of the country, and is a uni- departments-legislative, executive, and judiversal impairment of its man-power. Also because experience has developed the truth that the liquor traffic knows no master and knows no law, and is beyond the pale of all adequate regulation;" and for that many years it has ruled this country with an invisible iron hand, and for the past few years and now its influence and power has been and is pro-German, and against the United States and this state in this war. It was expressly decided by this court, when the judges composing it were Judges White, Willson, and Hurt, that section 20, art. 16, of our Constitution in no way deprived the Legislature of said undoubted police power and authority. They so decided not one time only, but, in effect, four times. Bell v. State, 28 Tex. App. 96, 12 S. W. 410; Ex parte Bell, 24 Tex. App. 428, 6 S. W. 197; McGuire v. Glass (Tex. App.) 15 S. W. 128; McGuire v. State (Tex. App.) 15 S. W. 918. The Supreme Court of the United States unanimously expressly held: "There is nothing in the Constitution of Texas restricting the power of the Legislature in reference to the sale of [intoxicating] liquor;" citing the Bell Cases, supra. Giozza v. Tiernan, 148 U. S. 661, 13 Sup. Ct. 723, 37 L. Ed. 601. Judge Henderson, while a member of this court, so held. Ex parte Vaccarezza, 52 Tex. Cr. R. 117, 118, 105 S. W. 1119. Section 20, art. 16, of our Constitution is simply a plain and clear command to the Legislature to enact a law whereby the voters of any county, justice's precinct, town, city (or other subdivision of the county), by a majority vote, may determine that the sale of intoxicating liquors shall be prohibited within its local limits alone. Certainly it does not say to the Legislature, Thou shalt not enact a law prohibiting the sale of such liquors in the whole state. This court, Judge Hurt writing, held: "The object of this provision was not to deprive the Legislature of its power over the subject;" and, further, to say that local option divests the Legislature of the power to prohibit the sale of such liquors all over the state "is a proposition too preposterous for discussion," and, "is absurd." Bell Case, supra. Undoubtedly the constitutional convention, in inserting said section in the Constitution, Our Constitution divides the powers of the government of this state into three distinct cial; and expressly requires that no person, or collection of persons, of one of them, shall exercise any power properly attached to either of the others (article 2, § 1); and vests legislative power in the Legislature exclusively (section 1, art. 3). Undoubtedly the power to enact and repeal laws belongs exclusively to the Legislature. This court cannot legally repeal any law passed by the Legislature; and if it should do so it unquestionably illegally usurps power never given it, and never intended it should have. A law may be as effectually repealed by a court by illegally holding it "unconstitutional" when it is not so as if it should in express language say a certain law passed by the Legislature, naming it, "is hereby repealed." Our Constitution prescribes the same oath of office of every officer of each of said three departments. Section 1, art. 16. Every legislator and the Governor takes exactly the same oath to discharge and perform his duties agreeably to the Constitution of this state as each of the judges of this court takes: no more, no less. In enacting laws the legislators, and the Governor in approving them, undoubtedly determine and hold that such laws are constitutional. By the enactment of the state-wide prohibition law-now in effect, the same as repealed by the decision herein-the 103 members of the House who voted therefor held it was constitutional, under their solemn oaths. So, the 20 senators, counting the 2 paired, who voted for it, held it was constitutional, under their solemn oaths. The Governor, too, by approving it, held it was constitutional under his solemn oath. Even of the small number of legislators who voted against its passage, but two in the House and one in the Senate stated they did so because they thought it was unconstitutional. Doubtless none of the others who voted against its passage did so for that reason, but for altogether other reasons. So we have two of the three departments of this state expressly holding said law is constitutional. The great Democratic convention of this state at Waco, on September 4th last, expressly and unanimously indorsed said state wide prohibition law, and unanimously commended the Legislature for enacting it, thereby holding it was constitutional, valid, and legal. A considerable number of said 103 members of the House, and 20 senators, were On Motion for Rehearing. subject in the light of the motion for reMORROW, J. We have re-examined the and, on the points reviewed in the original hearing prepared by the Attorney General, eminent, learned, and great lawyers of this opinion, it would be but repetition to restate state. Among those of the House was one the phase of his motion embodying the propour conclusions or the reasons therefor. On who formerly adorned this bench as a mem- osition "that the Legislature had authority, ber of this court; and one of the senators under the law of military necessity, to prohibis the Democratic nominee for one of the it the sale of intoxicating liquors throughout judges of this court, the successor of this writer, an eminent, great, and learned law- the Constitution an express or implied pro the state, notwithstanding there was within yer, who will doubtless very soon be a mem-hibition of the enactment of such a measure ber of, and adorn, the bench of this court. And among the members of said Democratic convention were also a large number of the greatest, most eminent, and learned lawyers of Texas, at least the equal of any on the bench of any court. The fact that others of the Legislature and convention were not lawyers in no way disqualified them from holding said law constitutional. Such power is not given alone to lawyers. have it, and have the right to exercise it, and do. Others also All courts and law-writers hold, and this court has held, that in deciding upon the constitutionality of a law no court will declare the law unconstitutional unless it is so beyond a reasonable doubt; that a reasonable doubt must be solved in favor of the legislative action, and the law be sustained. And yet-and yet, in the very face of said former decisions by this court by the great judges thereof-Hurt, White, Willson, and Henderson-and of said unanimous decision by the Supreme Court of the United States, and of the vote of 103 members of the House, and of the vote of 20 senators, and of the approval of the Governor, and of the unanimous vote of said Democratic convention, each and all holding that said state-wide law is constitutional, it is now ruthlessly torn from the statute book by Judge MORROW-one judge of this court. This is wrong-radically wrong. when no such military necessity existed," we think the Attorney General misapprehends the existence of the facts and the law upon which he found his proposition. At the time the law in question was passed there were on the statute books laws which not only forbade, under felony penalty, the sale or gift of intoxicating liquors to a member of the military organization at any place in the state, but also laws prohibiting the sale of such liquors to nine-tenths of the civil population, and in addition thereto a federal regulation establishing a prohibited zone around the military camps, and authority in the President, as commander in chief of the army, to extend or enlarge such prohibition when deemed necessary or advisable. Recalling the existence of these legal restrictions on the liquor traffic, it is apparent that the statutory prohibition law was not passed to meet a necessity to protect the soldiers training in the state from the evils of intoxicating liquors during the war. This view that it was not to meet an emergency is emphasized by the fact that the operation of the law was deferred for more than three months after its passage. See Local Option Laws; also Acts 35th Legislature (4th Called Session) c. 7, and c. 12; also Acts 65th Congress (1st Called Session), c. 15, 40 Stat. p. 76, § 12; Ex parte Hollingsworth, 203 S. W. 1102. If the decision herein stands an awful ca- The Governor, in his proclamation calling lamity to this great state will occur, for then the special session of the Legislature, sugthe iniquitous saloons and liquor traffic, with gested the enactment of several measures all their baleful and wicked effects, will be which would, by constitutional means, proillegally foisted upon a large number of our tect the public health and morals from evils people, men, women, and children, includ-growing out of the fact that the sale of ining many of the more than 200,000 soldiers toxicating liquors was not prohibited in the in training, and more than that number of industrial workers, all doing their "bit," everything they can, to win this atrocious war waged upon us for conquest by the cruel, beastly, and inhuman Huns. It is my intention now to write more fully, showing the undoubted validity of said law, if Judge MORROW adheres to his decision upon final hearing upon a motion for rehearing, if one is filed. For the present I merely write briefly, to voice my earnest protest against Judge MORROW'S decision. vicinity of some of the military camps, except in a limited radius, which the federal government did not wish on its own account to enlarge. These laws were all passed and given immediate effect, and such of them as have been construed by this court have been sustained as a legitimate exercise of the police power under the control of the Legislature. See Ex parte Hollingsworth, supra. The Governor, in a message to the Legislature, advised against the passage of a law prohibiting the sale of intoxicating liquors on the ground that its constitutionality was "The Congress shall have power declare war, ** to raise and support armies, * to provide and maintain a navy, to make rules for the government and regulation of the land and naval forces; to provide for the calling forth the militia to execute the laws of the union, suppress insurrection, and repel invasion; * * be necessary and proper for the carrying into to make all laws which shall execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or any department or office thereof." Article 1, § 8. * questioned by many eminent lawyers, and The federal Constitution declares: In these are embodied the war powers of the nation. It is held by the Supreme Court of the United States: * "The powers delegated to Congress, relating to war, are plenary and exclusive. Tarble's Case, 13 Wall. 397, 20 L. Ed. 597. Military necessity, so far as we are advised, does not become the authority for the pasThe Congress, having power to prosecute sage of law. Its functions arise, as we underwar, and not in the Constitution limited as stand, when in the time of war extraordinary to methods, has broad discretion in the enand unforeseen emergencies occur, in which actment of extraordinary regulations during the protection of the public interests requires for the moment the disregard of private sanction in the express or implied powers war. These, however, to be valid, must find rights, but to justify its exercise "the pub-granted to Congress. McCulloch v. Mary, lic danger must be immediate, imminent, and impending, and the emergency in the public service must be extreme and imperative, and such as will not admit of delay or a resort to any other source of supply." United States v. Russell, 13 Wall. 623, 20 L. Ed. 474. land, 4 Wheat. 316, 4 L. Ed. 579. In both peace and war the Legislature, in the passage of laws, must observe the express and implied limitations of the state Constitution, and the Congress must find sanction in the federal Constitution for its enactments. Neither can exercise unbridled power on the assumption that a necessity ex The power to make war, and the power that may be lawfully exercised incident thereto, is not in the state, but in the fed-ists therefor. eral government. In the Constitution of the United States we read: [4] A state may be impelled, by conditions growing out of war, to enact police regulations that it would not otherwise establish. In making such enactments, however, the power exercised must be within the limits prescribed or implied in the state Constitution. The people of the United States are at war, maintained through the agencies authorized by their federal Constitution. They are proceeding according to the organic law of the nation. On the subject we quote from a recent address by a jurist of national reputa tion: "While we are at war, we are not in revolution. We are making war as a nation, organized under a Constitution from which the established national authorities derive all their powers, either in war or in peace. The Constitution is as effective to-day as it ever was, and the oath to support it is just as binding." Amer. Bar Ass'n 1917, vol. 42, p. 232. Speech of Chas. E. Hughes. The state Legislature cannot, on the assumed existence of a military necessity, pass a law prohibited by the state Constitution, and the federal government, equipped with adequate war power, is not so impotent to protect its armies that it must impel the state Legislature to do that which the state Constitution forbids. [5] In the American system of government by the people through agencies, with powers defined and limited by written Constitution, the courts have no power to legislate. Their utmost is to refuse to aid in the enforcement of an act of the Legislature which transcends the authority vested in that department by the Constitution. The limitations imposed by the Constitution are essential (Hopt v. Utah, 110 U. S. 576, 4 Sup. Ct. 202, 28 L. Ed. 262), and there is no menace to constitutional government in requiring their observance, though there is danger thereto in suffering a disregard of them. No expediency can condone the sanction by the courts of an act of the Legislature which, as section 2 of this one does, annuls a provision of the Constitution. The part of the act prohibiting the sale of intoxicating liquors is not merely a failure to do that which the Constitution commands, but does that which renders ineffectual the power con |