Ex Parte Ferguson , 112 Tex. Crim. 152 ( 1929 )

Appellant moves for rehearing on the ground that the law attacked in this proceeding arbitrarily interferes with either a private business or a legal public occupation; and imposes unreasonable and unnecessary restrictions under the guise of protecting the public. Also that it is discriminatory and imposes burdens on the business of commercial ginning, not required of other similar occupations.

As far as we are able to ascertain, this law operates alike on all commercial ginners. There is in this record no testimony, or agreement in lieu thereof, to the effect that there is any other occupation like that of a public ginner, which is favored by reason of having no legal restrictions thrown around it. The illustrations in the motion do not appear to us to be in point. The shoemaker who makes and sells shoes, and the miller who makes and sells flour, do not seem to be in the same class with the ginner who takes the cotton of the producer, separates the seed from the lint and puts the latter into bales for convenience in handling. The shoemaker and the miller are manufacturers putting out a product which they sell as their own business. The ginner is but an agent who gives back to the producer his product in a package whose value, if we accept the facts suggested in Ex Parte White, 198 S.W. Rep. 583, can be increased or diminished greatly by fair or unfair treatment in ginning. The individual bales can not be opened and inspected by their owners or any prospective buyer without much loss and inconvenience, and the public welfare would seem served by any law fairly in aid of such proper ginning. The payment of a dollar license fee and the giving of a bond in the sum of a thousand dollars for the faithful conduct of a private business, might be intolerable because of the principle involved, but not so when paid and given to secure fair dealing in a public occupation. Appellant cites the same authorities as originally, with the addition of Lawton v. Steele,152 U.S. 133, and Leggett v. Boldridge, Sup.Ct. Rep. 49, p. 57. These two authorities but announce the same general principle, and neither is upon facts at all similar to those involved in the instant case. With the general principle announced in said authorities we are in entire accord, but are unable to make any application of them to the facts detailed and appearing in the record before us. From Lawton v. Steele, supra, we quote:

"Beyond this, however, the state may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. Barbier v. Connolly, 113 U.S. 27 (28:923); Kidd v. Pearson, 128 U.S. 1 (32:346). * To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts."

This we take to mean that primarily the authority and duty rests on the legislature to investigate, ascertain and determine what the public interests require; also what laws will best conserve such interests, — and that the enactment of any law presupposes that the legislature has done its duty in this regard; also that when the final arbitrament of court decision is appealed to, the courts will hold themselves concluded by the fact of the enactment by a sovereign legislature, unless and until it be shown in some legal way that private rights are transgressed or public rights are invaded by the law called in question. We again repeat that no facts are before us in this record, nor do we have judicial knowledge of any such, as would lead us to believe the legislature transgressed its power and authority in enacting the law in question.

The motion for rehearing is overruled.

Overruled.