The opinion
As the ordinance charged to have been violated is set forth in the majority opinion, I deem it unnecessary to copy it. My brethren have decided this case, resting it, in my opinion, upon erroneous lines. They base their conclusion, as I understand them, mainly upon the doctrine of the reasonableness of the ordinance. That disposes of the case upon an issue not primarily involved. I do not care to discuss that proposition, but I think it unreasonable as all acts of legislative bodies are invalid which discriminate in favor of one and against others. The question here is, does the ordinance discriminate between citizens? If it does, it is void, and the question of reasonableness has but little to do with it. I believe that fairly construed no legally safe conclusion can be reached otherwise than that the ordinance is discriminating in its nature in favor of certain citizens as against all others engaging in the same or similar lines of business and selling the same products, etc. The prevailing opinion seeks to avoid this by erroneous classification. The taxing power is not here involved. The question here is discrimination in vending things and selling on the streets, and not the question of selling without license. Under the organic law every citizen in Texas is entitled to all the rights and privileges of every other citizen, and this applies as well to privileges as to rights. Bill of Rights, section 3; Harris' Annotated Const., p. 50. The Legislature has no power to enact legislation contravening this provision of the Constitution, much less has that body authority to empower municipal corporations to do so. That cities and towns may control streets does not authorize the creation of ordinances which discriminate in the control of such streets between the citizens of the municipality or those of the State. When an ordinance is passed, it must not discriminate against anyone who may come under its operation. I do not care here to discuss the authority of cities and towns to control streets by means of reasonable ordinances, but would say no ordinance can legally stand or ought legally to stand, and can not be reasonable where it discriminates in favor of or against our citizenship. I understand that in these latter days there is a growing tendency towards the proposition that government is *Page 181
superior to the people and the Constitution. This would hardly be asserted directly and explicitly, but there is a tendency in that direction. Of course, this is not correct, and if carried to its legitimate conclusion would be subversive of our constitutional form of government. Our people created this government; the government did not create them. The government is our subject; we are not its subjects. The citizenship of Texas are the sovereigns and "all power is inherent in the people." and they and they alone can make and unmake their government and Constitution. If they do not like their Constitution they can make another, but legislative bodies — State or municipal — can not make or change that instrument. This is plainly set forth in the Bill of Rights. Among other things set forth in the Bill of Rights clearly and emphatically is the reserved right and guaranty that every citizen has equal rights, and no man or set of men is entitled to separate public emoluments or privileges. Bill of Rights, section 3; Harris' Annotated Constitution, page 60, for collation of cases. It is again emphatically emphasized in that document that no citizen shall be deprived of life, liberty, property, privileges or immunities, etc., except by due course of the law of the land. Bill of Rights, section 19; Harris' Annotated Constitution, page 184, for cited cases.
To prohibit one citizen or class of citizens from engaging in a business under like or similar circumstances with all others similarly situated is plainly violative of the provisions of the Constitution. Ex parte Jones, 38 Tex.Crim. Rep.; Rainey v. State, 41 Tex.Crim. Rep.; Ex parte Woods, 52 Tex. Crim. 575 ; Gustafson v. State, 40 Tex.Crim. Rep.; Poteet v. State, 41 Tex.Crim. Rep.; Bolen v. State, 48 S.W. Rep., 1118 ; Carraci v. State, 48 S.W. Rep., 1118 ; Wilson v. State, 48 S.W. Rep., 1119 ; Owens v. State, 53 Tex.Crim. Rep.. It is useless to multiply the cases. These are sufficient.
This ordinance authorizes certain citizens to sell, etc., certain products, etc., and prohibits all others from engaging in the same business or to sell the same character of product or goods under similar circumstances. If this is not discrimination I am rather at a loss to know what it takes to constitute discrimination. It is a small sized monopoly, confined to certain citizens exclusive of all others, a miniature trust created by municipal ordinance confined to the favored few. I do not care to elaborate this question. The above cited cases are clearly in point, and ought to settle the question. The Constitution prohibits this character of legislation, and this would be more than ample authority without cases. The Constitution is superior to city ordinances, and controls all legislative bodies of whatever magnitude, and as well the judicial and executive departments of government. I do not believe it would be seriously asserted that the legislative, executive or judicial department combined have the power to set aside, override or minimize constitutional authority or limitation. The cases cited by my brethren on the questions decided in the cited cases may be correct as decided, *Page 182
but they are inapplicable to this case and the question here involved. Cases properly decided, if properly applied, are all right, but because properly decided on the question therein involved does not and can not constitute them authority to sustain propositions not involved in those decisions. The question being different, the cases do not apply. Having lost sight of the doctrine of discrimination in legislation and in this ordinance, it is but natural the opinion should also lose sight of the inapplicability of the cases cited in the opinion. Having ignored the discrimination in the ordinance, my brethren have cited inapplicable decisions involving other questions, and called them into service to do guard duty in this case. The ordinance here involved is that under which relator was arrested, with its discriminating qualities, and not the ordinance referred to in the Henson case, 49 Tex.Crim. Rep.. The two ordinances are entirely different. The premises being wrong, the cases do not fit, and the conclusion reached necessarily erroneous. The Henson case, supra, does not support my brethren in their opinion, nor can it be held as authority in this case as will be plainly seen from reading it. The ordinance discussed in the Henson case made no exception, hence there was, no discrimination. It applied to all citizens alike, and the punishment provided was for any and every citizen of Texas who happened to come within its denunciation. The question of class legislation, therefore, was not in that case. The question here is class legislation, and pointedly so on the face of the ordinance. The same may be said of the case of Wade v. Nunnelly, 19 Texas Civ. App. 256[ 19 Tex. Civ. App. 256 ], 46 S.W. Rep., 668 , as of the Henson case. The question in that case was, could the writ of injunction be made available to prevent the enforcement of a penal ordinance. It was claimed in that case that the ordinance was in law void, therefore, it was sought to enjoin its enforcement by writ of injunction. The court decided that the writ of injunction was not available, it being a criminal case, "unless it is made to appear that such enforcement would result in irreparable injury to property rights." The validity of the ordinance was not necessarily involved as a question to be decided, and as I understand that decision the court did not decide the case on that question. There were some expressions as to the power of the city council to ordain reasonable ordinances, but that is obiter dicta, and this whether that statement in the opinion was right or wrong from a legal standpoint. The question was not necessary to a decision of that cases as it is not, I think, in this case, as to the power of a city to control its streets. The question is, that in the control of those streets there should be no discrimination as against one class of citizens or in favor of another class of citizens; that the control must be exercised with equal rights to all and without class legislation. The ordinance in the Wade v. Nunnelly case was unlike the ordinance here involved. That ordinance was intended to apply to all alike, without discrimination in favor of or against any citizen or class of citizens. That decision, therefore, does not sustain the majority opinion, nor has it any applicability to the question here *Page 183
involved, that is, discrimination. I do not believe my brethren would cite approvingly the decision in the Wade v. Nunnelly case on their decision of the injunction question, for it is directly contrary on that question to their opinion in Ex parte Roper, 61 Tex. Crim. 68 , and Ex parte Looper, 61 Tex. Crim. 129 . The Wade v. Nunnelly decision is in conformity with the writer's dissent in Ex parte Allison, 48 Tex.Crim. Rep., at page 641. See dissenting opinions in Ex parte Allison case, supra, and Ex parte Roper, 61 Tex.Crim. Rep.. I do not care to discuss the two cases, Wade v. Nunnelly and Ex parte Henson further; they do not apply here nor support the prevailing opinion in this case.
It perhaps was not necessary here to dissent as my views on these questions are so well known to the legal profession and the bench, but I do so because I feel persuaded that my brethren are in error in their application of cited cases in support of their conclusion. So far as I have been able to ascertain this seems to be an opinion on pioneer lines, and may be made to become the progenitor of another line of decisions which, in my judgment, are erroneous and out of harmony with our theory of government, wherefore I have deemed it advisable to say as much as I have said.
The Hon. Luther Nickels, counsel for relator, has filed an able and exhaustive review of the cases cited by my brethren and has so fully, in my judgment, answered the opinion I believe it right and proper that his argument should be perpetuated, and it, therefore, will be in substance printed with the report of the case. There is much in it of value to the bench and bar of the State.
For the reasons indicated I enter most respectfully this dissent from the decision of the case. The relator ought to be discharged, and the ordinance held invalid.