/’ 

, 

March 16, 1939 

Hon. R. Emmett Morse 

Speaker, House of Representatives 

Austin, Texas 

Dear Sir: 

Opinion No. Q-409 

Re: Constitutionality of H. B, 247, relating 

to horse-racing under certain conditions 

We have your letter of March 13th, stating the request of the House 

of Representatives for our opinion as to the constitutionality of pending 

House Bill No, 247. 

I 

While your letter did not specify any particular part of the Act, 

which has a "savings olausee (Sea, 52), since its effectual operation is 

governed by the seotions.propo.sing to permit ratification or rejection 

t of permit holders to oonduct horse races, by the voters of counties under 

' stated provisions, we shall discuss those sections, inviting further in- 

: 

quiry oncany portions of the bill not considered by us. 

The bill creates The Texas Horse Racing Commission, provides for 

its organization and incidentals thereto, contains oertain revenue and 

tax features, and provides for the distribution of its funds,whhen and if 

collected. 

The general powers of the Commission are stated in Section 8: 

"The Commission is hereby authorised end empowered to adopt 

rules and regulations for the control and supervision and direction of applicants, permittees and licensees for the holding, 

conducting and operating of all horae race meetings held in this 

$tate, provided such rules end regulations shall be uniform in 

their application and effect, snd the duty of exercising this 

control is hereby made mandatory upon such Commission." 

As we understand the salient working features of the bill, the method 

of operation is thus proscribed: 

A person (association or corporation) must first file an application 

with the Conmission to conduct a horse raoe meeting and operate c pari-. 
Hon. R. Bmnett Morse, March 16, 1939, Page 2 

mutuel betting pools. He must comply with certain requirements of Sec. 13, 

giving in fill the information there prescribed. He pays a fee of $50.00 

to the Commission, The Commission then holds 8 public hearing, and if the 

Commission concludes the applicant complies with all the provisions of law, 

the rules and regulations of the Commission and is financially able to conduct the proposed meet, and the cosnmanity wherein the track is located is 

not already adequately served with racing, 

"the Commission shall issue a permit to the applicant, subject 

to ratification or vote of the people residing within the county 

wherein the horse race track is located at a referendum held for 

that purpose and as hereinafter provided for." (Sec. 13; underscoring ours). 

Such permit is then oertified to the Commissioners~ Court of the 

County wherein is located the track at which the races are proposed to be 

operated, It is then the duty of the Covmissioners' Court to call an election at the expense of‘the applicant and there is submitted to the qualified 

voters- the question of the approval or rejection of the particular permit 

granted by the Ccrmmission. The form of ballot is set out: 

"For the approval of the permit granted by the Texas State 

Racing Commission to .,...(nting the permittee) to hold and conduct 

horse race meetings at ,.... track (naming the track) in . . . . . 

County (naming the county)", end the words, "Against the approval of the permit granted by the Texas State Racing Ccsmission~ 

to . . . . (naming the permittee) to hold and conduct horse race 

meetings at .,., track (naming the track) in ..,. County, (naming the county)." 

If the result of the election is favorable to the approval of the 

permit, an approved permit is then issued by the Commission to the applicant or permittee, which entitles the permittee to issuance of a license 

,by the Commission for a period of one year upon payment of the license fee 

provided in the Act. No further discretion exists to the Commission, if 

the fee is paid. 

Thereafter, the license, upon application, may be renewed from 

year to year during the period of the permit, which is ten years, provided 

the Commission finds the applicant still possesses all the qualifications 

provided by the Act and that the permit has not been revoked by a subsequent election, and that the licensee has not violated any of the provisions of the Act or the rules and regulations of the Commission made and 

provided for in the Act. An approved permit expires after a period of 

ten years and no license may be issued after the expiration of the period 

of the approved permit, The Commission is vested with power to suspend 

or revoke any license or permit if it be made to appear to the satisfaction of the Ccmmission that the holder or holders thereof'have violated 

any provision of the Act or any rule promulgated by the Commission. 
Hon. R. mett Morse, March 16, 1939, Page 3 

Independent of the findings of the Ccmmission, a permit or license 

cnce approved may be revoked by majority vote of the electorate of the 

county where such racing is allowed, if twenty (2%) per cent of the total 

qualified voters petition for such referendum, and if the expenses of such 

election are provided for. This may be done as often as cnce every two 

years. 

Section 33 of the proposed bill reads as follows: 

"Every horse race meeting at which racing is conducted end parimutuel pools are operated, except as allowed by this Act, is hereby 

prohibited and declared to be a public nuisance, and every person, 

association or corporation aiding or abetting therein or conducting 

or attempting to conduct horse racing and operate pari-mutuel pools 

in this State net in conformity with this Act shall be deemed guilty 

of a felony and upon conviction thereof be confined in the state 

penitentiary for not less than one year nor mere than tenyears." 

In analyzing the provisions of the proposed legislation, we must 

recognize and take into consideration certain inalienable principles upon 

which our form of government is based. The Texas Constitution ordains that 

the powers of our government shall be divided into three distinct departments with specific and exclusive delegation cf power to the legislative 

branch to enact or suspend law. All official authority in Texas is derived 

from the people as delegated in the constitution. Even the people themselves are bound by that document, until they change it as provided by its 

express terms, 

Ours is a representative democracy, as opposed to a pure democracy. 

The laws are made not by the people directly, but through their chosen representatives. See Art. 1, Sec. 2 and 28, Bill of Rights; Art. 2, Constitution; 

Rx Parte Farnsworth, 133 S. W, 536, 33 L. R. A. (New Series) 968; State v. 

Swisher, 17 Tex. 441; Lyle v. State, 193 S. W. 680. 

Under the provision of Section 33 of the bill, supra, the racing 

of horses with pari-mutuel betting is prohibited throughout the State and 

in every county in it, until some specific one individual (or association 

or corporation) can obtain a majority vote of the electors within scme 

one county of this State wherein is located a race track. No matter the 

said individual has satisfied fully every regulation of the statute, every 

rule of the Commission, every whim or caprice of the individual members 

of the Commission. The designated "permit" gives the holder thereof no 

right to conduct a race, and he would be subject to penal servitude in the 

penitentiary if he undertook the operation of racing (with betting), before the voters of the county favored him with their favorable referendum. 

The question of whether the people of the various counties may by 

local option election suspend the general laws has been definitely and conclusively settled in Texas. Likewise, that the Legislature cannot delegate 
Hon. R. Rmnett Eiorsc, March 16, 1939, Page 4 

its legislative functions to local option, to place in force or not place 

in force * general law. The first Supreme Court of Texas in the case of 

State v. Swisher, 17 Tax. 441, uses the following language: 

"The mode in which the acts of the Legislature are to become 

laws is distinctly pointed cut by cur 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 laxmaking 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. 

This rule of law was subject to much discussion by the courts, 

and at one time the Supreme Court favored the rule while the majority of 

the Court of Criminal Appeals did not, but in the case of Lyle v. State; 

193 S. W. 680, the reasoning of the Swisher case, supra, is set out and 

adopted by the latter court, as is the following language of Chief Justice 

Phillips in the Supreme Court case of Rx Parte Mitchell, 177 S. W. 953: 

"The case presents the question of the constitutionality 

of the referendum act of the Thirty-third Legislature authorising the qualified voters of any county, or certain political subdivisions of a county, to determine by an election whether pool 

rooms or pool halls should be prohibited therein, and making it an 

offense to there operate or maintain them if the result of the 

election be in favor of their prohibition. 

"The constitutionality of the act is assailed upon two grands: 

(1) That it amounts to a delegation by the Legislature of its own 

legislative power, imposed upon it by the Constitution, which it 

*lone must exercise, and which it may not commit to any other agency; 

(2) that it authorizes the suspension of a general law of the state 

by the voters of a county, or subdivision of a county, namely, the 

statute licensing the operation cf pool halls generally within the 

state, in violation of article 1, para. 28, of the Constitution, 
Hon. R. Rmaett Morse, March 16, 1939, Page 5 

which is "No power of suspending laws in this State shall be exercised, except by the Legislature; an amendment of previous Constitutions which permitted such suspension under 'the authority1 of 

the Legislature. 

"The act is plainly unconstitutional, in cur opinion, for both 

of these reasons. We largely rest cur decision as to the first 

question upon State v. Swisher, 17 Tex. 441, where an act of the 

Legislature in no way dissimilar in its effect from this one was 

upon this ground held unconstitutional by the first Supreme Court 

of the state. That decision has never been overturned, and is the 

law upon the question. .The second question is equally well settled, 

according to cur view, by Brown Cracker EC Candy Co. v. City of 

Dallas, 104 Tex. 290, 137 S. W. 342, Ann. Cas. 1914B, 504." 

In adhering the Court of Criminal Appeals to the Supreme Court 

view, Judge Morrow in the Lyle case, supra, says: 

"We are unable to find anything in our constitutional and 

judicial history upon which to base a conclusion that the decision of the Supreme Court in following the rule in the Swisher 

case is unsound. On the contrary, we have pointed out hereinabove much that, in our judgment, supports its correctness." 

In the case of Jannin v, State, 61 S. W. 1126, it appeared the 

Legislature had passed a statute making it a penal offense for any other 

person than the agent of a railroad company to sell its tickets, with 

the further provision that it should not apply to tickets on which it 

was not plainly printed that it was a penal offense for the holder to 

transfer the same. The majority of the court held the act unconstitutional, employing this language: 

"We accordingly hold that because the legislature left it optional with the railroad companies whether or not, in the issuance 

of tickets, they would create a penal offense, the act of the legislature is without authority of law; is violative of the law, in that 

it does not define with certainty an offense; does not itself oreate 

an offense, but delegates its authority to another agency to make 

the sale of railroad tickets a violation of the law. In this respect 

it would appear to be violative of section 28 of our bill of rights, 

which says: 'No power of suspending laws in this state shall be 

exercised except by the legislature.' See Suth. St. Con& Pam. 

69. We therefore hold that the sale of railroad tickets in this 

case is not a violation of law." 

In the case of Rx Parte Maynard, 275 S. W. 1070, it appears the 

City of Jacksonville, Texas, enacted an ordinance making it unlawful 

for persons engaged in the transfer business to solicit hire of passengers, 

-about any railroad station, exempting frcm operation of the ordinance 
Hon. R. Rnmett Morse, March 16, 1939, Page 6 

persons under contract with a railroad to transfer its through passengers 

or baggage to another railroad station. The Court of Criminal Appeals 

in its original opinion by Presiding Judge Morrow, and in the opinion on 

motion for rehearing by Judge Lattimore, held the ordinance in contravention of the constitution, based on "the well settled rule that the power 

to make laws which, by their terms, become and are effective or not at 

the pleasure of individuals or corporations, does not exist in the Legislature, and cannot be asserted by a municipality created under legislative 

authority." (Underscoring curs). 

In the case of Ex Parte Farnsworth, 133 S. WV 535, 33 L. R. A. (New 

Series) 968, en ordinance of the City of Dallas was adopted by referendum 

vote. Said ordinance was authorized by the "initiative and referendum" 

clause of the charter granted by the Legislature. Farnsworth was arrested 

and charged with a violation of the ordinance. The Court of Criminal Appeals had before it an original writ of habeas corpus. Relator was discharged, the court striking down the referendum clause. 

We find these words in Judge Davidson's opinion: 

"That the referendum is adverse to our constitutional form of 

government as a means of putting into operation enactments by the 

legislature has been expressly decided in this state as early 88 

State v.~ Swisher, 17 Tex, 441; That case has been recognized and 

followed in subsequent decisions. See Stanfield v, State; 83 Texi 

319, 18 S. W. 577, and also Werner vi. Galveston, 72 Tex. 22; 7 S.-WA. 

726, 12 S. W.- 1596 In the last cited case; Judge Gaines,.writing 

the opinion, uses this language:. *It is a well-settled principle 

that the legislature cannot delegate its authority to make laws, 

by submitting the question of their enactment to a popular vote.6.; 

It is equally certain that the people cannot be reinvested by the 

legislature with the functions of legislation conferred by them on 

a department of government; nor can the legislature render the enactment of a law dependent upon the acceptance by the people by popular vote. See oases already cited, Rx parte Wall, 48 Cal., 279; 17 

Am.. Rep. 425; Morford vd Unger, 8 Iowa, 82; Santa v. State, 2 Iowa 

165, 63 Am. Dec. 487; State vd Beneke, 9 Icwa, 203; State ex rel; 

Dome v. Wilcox, 46 Mo.~ 458; Gibson v. Mason, 5 Neb. 283; Cincinnati, 

W. & 2. R. Co. V~ Clinton County, li Ohio St. 77, This inability 

arises no less from the joint principle applicable to every delegated authority requiring knowledge, discretion, and rectitude in 

its exercise, than fran the positive provisions of the Constitution 

itself. The people in whom the power resided have voluntarily 

transferred its exercise, and have positively ordained that it 

shall be invested in the legislature, To allow the legislature 

to cast it back on the people would be a subversion of the Constitution, and would change its distribution of power without the 

action or consent of those who created the Constitution." 
Hon. R. Emmett Morse, March 16, 1939, Page 7 

Local option elections to determine the law applicable to the several 

counties have been sustained as to prohibition of intoxicating liquor and 

prohibition of stock running at large, but in each instance direct autnority is given by the Constitution. Another exception is noted in some 

cases, such as City of San Antonio v. Jones, 28 Tex. 19; Werner v, City 

of Galveston, 72 Tex. 27; Riley v. Town of Trenton, 184 S. W. 344; Spears 

v. City of San Antonio, 223 S. W. 166 and Johnson v. Martin, 12 S. W. 

321, but many of these are distinguished by Judge Morrow in the Lyle case, 

supra, as cases wherein municipal corporations are concerned and where 

charter provisions are declaratory. The later cases are likewise distinguishable. None of these cases are analogous to the bill before us 

and none of them decide the question of whether an act of the Legislature 

general in application would be given life by the vote of the people of 

the county. 

The case of Trimmier v. Carlton, 296 S. W. 1070, has been suggested to us as authority for the validity of this bill. A careful study 

of the lengthy opinion in that case will disclose the power of the Board 

of Water Engineers to exercise much discretion after the vote has been 

declared; that there is constitutional authority for the procedure follcwed; and specifically recognizes the principles of law discussed herein. 

The cases of Ex Parte Farnsworth, Fz Parte Mitchell, and State v. Swisher, 

herein cited are recognieed by style, and no intimation given they should 

be overruled, 

We have carefully considered the question andfor the reasons 

given e.nd cases discussed, are of the opinion that H. B, 247 is unconstitutional insofar as its provisions pertain to approval of the permit by 

the voters before issuance of license. 

We do not question the legal right of the Legislature to legalise 

racing with pari-mutuel betting by passage of a general bill so providing, 

nor do we.deny the right to create a commission to administer and supervise same. It is well known that Commissions created by the legislature 

to administer laws complete within themselves have been declared a valid 

exercise of the legislative power, but in no instance have we found where 

the appellate courts sanction such a procedure as set cut in the bill 

you submit. 

Very truly yours 

ATTORNkY GENERAL OF TEXAS 

(Signed) Benjamin Woodall 

BY 

Benjamin Woodall 

Assistant 

BW:AW 

APPR@fED: 

(Signed) Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS