The State v. Green H. Swisher, 17 Tex. 441

Lipscomb, J. A bill was found by the grand jury of Hays county, on the 18th October, 1854, against Swisher for retailing whiskey in a less quantity than one quart, on the 10th day of October, without having a license. To this bill Swisher filed a general demurrer, which was sustained by the Court; and the State appealed.

We are not apprised of the particular grounds of objection to the indictment, on which the Court below based its judgment in sustaining the demurrer, but presume it was on the constitutionality of the Act of the Legislature of the 11th Feb., 1854, regulating and restricting the sale of spirituous liquors. So much has been said and written about this Act of the Legislature, that it has become familiar to every body, especially the profession. We shall, therefore, omit its insertion here.

It is known that the prominent objection to its constitutionality is, that it is referred to the voters for its ratification before it becomes a law. This being a mode of legislation not known to the Constitution, and not derived from if, it is supposed to be invalid, and incapable of being enforced as a law. The question presented is not now of very general interest, as the Act, whether constitutional or not, has been repealed.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.

In several States similar Acts have been passed by the Legislatures thereof, and it is admitted by.the Attorney General, that in most of those States, (perhaps all but Vermont,) these Acts have been adjudged by their Courts to be invalid and uncon-’ stitutional. We do not propose to examine these decisions, nor to enquire whether the Constitutions of the several States, where these Acts have been adjudicated upon, are in terms like our own; but will proceed to determine whether the Act under consideration is repugnant, or not, to our own Constitution.

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 a 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. There is no analogy between the Act of our Legislature, and the various Acts of Congress, depending upon a future contingency of a rebellion, insurrection, foreign war, a treaty, or the acts of a foreign power. These do not depend upon the vote of the constituency of Congress, but on a contingency over which they have no control.

It is believed, however# that this supposed analogy is the vice of the Opinion of the Court of Vermont. The Attorney General has suggested that

an Act may be unconstitutional in part, and free from that objection as to other parts ; that so much of the Act as refers to the votes for their ratification may be void, and the balance valid. This is certainly true, if the Act was divisible ; if it acted upon different objects. But we do not regard this Act as susceptible of division. Its whole object and action is upon restraining the sale of liquors in less quantities than one quart, and it must all fall together.

The Act being unconstitutional, and the existing laws on the subject of retailing spii ituous liquors not being repealed, Swisher was subject to an indictment for retailing without license. If he had any defence, such as having paid the license fee, and was refused license, it should have been set up by Mm as matter of special defence ; but on demurrer the judgment ought to have been against him, and we would be bound to reverse the judgment and remand ; but the record is so defective that we do not feel authorized to render any other judgment than a dismissal of the appeal. Appeal dismissed.