*1 Beports. 46 Texas Criminal city relator by provided conviction of a offense ordinance. 641. Blessing Galveston, locjal I further adopted believe that not Corsicana, having city charter it was in option, prescribe competent to be a saloon limit I believe this in said Under authorities city. an act of affected of our Constitution regulation provisions Ala., and see State, to local regard See Dorman v. option. Power, Black on Freund Police sec. on Intoxicating Liquors, 33. sec. charter, prescribed

I believe that the being also saloon limits be its can not questioned. reasonableness chief to whose relator Stewart, police, custody may said been commissioners committed, appointed board of having may, relator. Be this city,

of said not authorized to hold as court which im virtue judgment view he held of the my Stewart recognized city him. The council mar a fine on has posed officer. de facto shal, People Lathrop, and he as a may regarded rate, 60 S. W. 548. At Mich., any Brown under the said court until the fine judgment relator should be held to custody. he is remanded accordingly are paid; and costs Relator remanded custody. Judge. BROOKS, I think charter constitutional entirely views; and concur in the conclusion barely hence write my here reached. Judge. Presiding I am of

DAVIDSON, applicant opinion involved so far as my For views on questions be discharged. ought Anderson, decidejl I no here discussed, just express see Ex parte ' as to its charter validity entirety. opinion written for rehearing opinion.—Beporter.] overruled [Motion J. M. Anderson. Ex Parte 2718. Decided June 1904. No. —City Law. and Ordinances—Constitutional Charter 1. expresses people; speaks, it. will of the Where the Constitution people; Legislature, is in courts and executive all machinery operation put by virtue ail but instrument, people speaking through of that creatures same. People Paramount. 2.—Same—Intent ordaining purpose intent of the the Constitution must agencies purpose out under to be carried created be the ’ executing power, its com- direction clothed or behests.

mands 7904] Ex Parte Anderson. —Same—Legislative Omnipotence. *2 legislative The rule omnipotence only administrative applies power, of to Legislature may carry to the tion that the end out the mandate of the Constitu- regulations prescribe to for put operation reasonable and the subordinate divisions and the subdivisions State. of 4.—Same—Local! Self-Government Supreme. Legislature The constitutionally can not from people take power the the general of control their local affairs and that over centralize in a government, Legislature. authority central by some created' the 6.—Election Common of Officers City System. electing system The mayor, of the aldermén other city and was officers adoption present common the time of the of the Constitution, and was government, municipal the of plan established and it not could have been the purpose of the of framers instrument to a destroy system of government

municipal so well in this State. established Recognizes 7. —Constitution Officers. Elective recognizes The Constitution of 1876 expressly mayors, aldermen and governments city as elective officers of others and confers powers many legislative change. upon towns cities which the and will can not 8.—Intention of Framers to of Constitution Preserve Landmarks of Local Government. the of purpose was the framers of the present preserve to self-government the of old landmarks local representative democracy, making by the of against officers cities elective, and thus a erect barrier government. in the State centralization of Checks 9.—Government Balances. government, government, The State like the National of checks is one balances, and no constitutionally co-ordinate can encroach branch govern- another, system and where appointive applied is in municipal ment people. has been vested city by council who are elected 10.—Frame Work of Local Self-Government. right self-government work, The is a part much of frame of as govern- machinery, theory, of our is spirit reason by ment itself as framed the Constitution. 11. of Elective —History System. government history The of municipal in Texas shows on based the elective system of its officers. Arrest—Discharge Corpus—Illegal 12. Relator. —Habeas The was without authorize, by constitutional special charter, the Governor appoint City a board commissioners for Corsicana, appointment by police chief of such commission legal equally void, authority was and he was arrest and hold relator for a violation of a State law and latter under a writ of habeas dischárged dissenting. custody. corpus will J., Brooks. Courts—Jurisdiction. —City court has cityA no try penal violations statutes.

From Navarro' County. for habeas for

Original release from arrest application corpus, by chief Corsicana, a police city commission appointed by appointed by charter; under Governor the arrest for special being violation of law. State Sunday opinion states case. Respondent, John Wheeler, Ballew & for Stewart, relator.

sheriff, constable, marshall, lawful nor a officer of peace writ, has no restrain or hold him applicant, virtue by 46 Texas Criminal although legal same have been issued legal authority, by by court; because said John not been marshal Stewart has elected city Corsicana, a vote marshal people appointed city Corsicana, board of were commissioners who appointed of Texas, Governor for in 271 of the act provided special section This act Legislature, known as charter Corsicana. special is unconstitutional. unconstitutional,

Said act of the attempts because abolish and the existence of the local destroy body politic, Corsicana, people city which was instituted benefit, and to protect of Corsicana for their and pursuit happiness, welfare; their life, general liberty property, promote locality act of seeks to of said impose upon said *3 Legis The without consent of said people. municipal government a an nor force existing can neither destroy lature alter, amend, same, or abolish the nor residing therein to them to another and The accept government. attempt different compel of of Corsicana said act incorporation to dissolve the old special effect, so-called charter immediate special Legislature, put of dozen instance less than a of consent people, of said unconstitutional city, inhabitants is an invasion law. civil to the common and contrary self-government, 3, 4; 3, sec. 19, 1; 2; 26, art. sec. 12 art. 1, 10, and of art. 2, Secs. S., sec. 57, 3; 1; 14th amendment U. 6; art. Const. secs. 56 and art. Ill., Moores, A., 624; v. 41 L. R. 17; City 51 State v. Chicago, People 477; W. v. Rep., Railway 68 S. Co. Clinton v. Thompson, Lexington Mo., 5; 77; Ct., v. St. Louis Co. 15 St., Hamilton Com., 1 Ohio Co. Mass., Boston, 509; 158 35 A. R., 515; S. Cem. v. Rathbone Mt. Hope A., A., 408; v. 4 L. R. Wirth, Denny, 65; R. Holt Evansville 34 L. v. v. A., 93; Hurlburt, 9 Am. 103; v. Indiana, Rep., 4 L. R. v. People People A., Fox, v. R. 202; 893; 56 L. Detroit, 15 Am. State v. Rep., Kennedy 84; v. 412; 7 Am. 21 Wis., People Lynch, 26 Am. Rep., Brunst, Rep., 63; Porter, Y., Albertson, v. Y., 90 N. Bolton 55 N. Townsend v. 677; York, 532; v. Horton, 15 50 L. R. Hewport v. Hew 50; Draper, Wood Lac, A., 831; 53 L. v. Fond Du R. Mechem on Pub 330; O’Conner A., 58; v. Barker, 93 Am. Officers, 123; Corp., Dillon Mun. St. lic 5, 8, sec. 416 et 4, seq.; 397 et sec. 543 222; seq.; p. et p. sec. p. Rep., 208; Law, 49, 5 Lewis, Ex 73 S. ed., parte Rep., W. Cooley Const. seq.; M. Ry. N. 1; Orleans, O. & C. Co. New Rep., 45 Texas Crim. v. 481. Ann., La. 25 Martin, Attorney-General, for John Assistant State. R. Howard Corsicana, also for the State. The sectionsof Attorney City Mays. relating Corsicana court are corporation charter special Twenty-sixth Legislature creating corpora the act copy

literal in Texas. Acts of 26th 40; and town Leg., each city p. tion court Charter, Corsicana sec. 49 et This p.-; Leg., seq. Act 28th Special 290.4] 375 Ex Parte Anderson. establishing in law a re-enactment the purpose was merely 514; Texas Crim. Rep., Ex 41 Wilbarger, court in Corsicana. parte Stats., 3255; art. 581; Rev. Hart, Ex 41 Texas Rep., Crim. parte 8 State; 491; Allrecht v. State, Whisenhunt v. 18 Texas Crim. App., 76; 313; Texas Texas 16 Crim. App., App., Crim. Chapman 29 439. Creel, parte App., Crim. Ex created

The court act corporation TwentyJrixth effective court the same should corporation provided' act and towns. in cities and when such cities towns organized by have should that Corsicana Twenty-eighth Legislature provided the act. the benefit of said court literally readopting com of three The charter Corsicana for the provided appointment Governor, and these commissioners empowered missioners Stewart, marshal who appoint Corsicana. city policemen of relator, arrested marshal of appointed by Corsicana city commission. council fixes the the marshal and salary po The city licemen funds for the thereof. parte Ex appropriates payment Lewis, Levine, 7 Texas Ct. Texas Crim. Ex 1; Rep., Rep., parte 532; Y., at this term; rendered State ex rel. Draper, Wood v. 15 N. Wirth, Y., 459; Health Hesiter, Rathbone v. N. Board of Y.,N. A., Davouck v. Moore L. R. Crim. (Mich.), Code Proc., art. 43; Rev. art. Stats., Durham, Newburn v. S. W. Paris, 195; Givens City of Rep., 974; S. W. Sarah Whitfield of Paris, City *4 Applicant was Presiding SON, DAVID in the Judge. convicted court city city Corsicana violating State statute pro sales on his fine hibiting Sunday. Refusing to he was pay arrested chief of and resorted the writ police to of habeas by secure corpus to his therefor various discharge, assigning reasons. want urges jurisdiction

He court to city try him, as was done, for State This alleged violation law. contention is well case, taken. 65 S. W. Sibley’s Rep., exactly point. See Texas, State, 631; v. also Holmes 44 Ex Coombs, parte 38 Texas Knox, 648; Ex 39 S. 670; Crim. W. Rep., parte Rep., State, Leach v. 248; Ex parte 36 Texas Crim. 38 Texas Rep., Fagg, Crim. 573; Rep., 693; 47 S. W. Wickson, Rep., Ex v. parte Ballard 44 S. W. Rep., State, 39 S. W. Holland Rep., Bigby Tyler, Texas, 44 Towles, Texas, 413; 351; Ex 48 Williamson v. parte Lane, Texas, Whitlow, Texas, 273; Texas, Ex Gibson parte Templeton, 62 Gress, Texas, 242; De 555; State v. v. Dallas, Crowley 44 S. W. Latimer, 433. 865; Titus This case Rep., does not come laid in Ex parte within the rule down Wilbarger, Texas Crim. Rep., Hart, Ex 41 Texas Crim. parte he contended that"* can not further be held It is under such judgment void, court because city having no to authority render the is also well This taken. The position judgment. court has ‘‘city no Criminal to violations of Authorities try statutes. authority penal supra. Stewart, is also urged chief of is not an acting as police,

officer of said city, Pace, because one of appointed the commis- by sioners appointed by executive, under the terms special charter granted of Corsicana city The recent by Legislature. appointment Stewart is to be void alleged because the Legislature has no to authority empower Governor the commissioners appoint who him appointed chief (Stewart) police. the terms charter, of this By the Governor is authorized appoint citizens of

three not less than five residence to con- years city, stitute “board of commissioners.” In to this pursuance authority the executive Pace, S. A. appointed C. H. and J. H. Woods Allyn to constitute said “board of commissioners.” Pace appointed Stewart chief The charter is too police. voluminous to be set out this opin- ion, but a brief of it summary discloses that these have commissioners sole control and exclusive supervision department, police fire depart- ment, and street and the sanitary department, management super- vision of all public improvements ordered the council. And are clothed and it is further power, rules, made their to make all duty regulations deemed requirements proper govern organization, management fire, operation control police, sanitary street exclusive departments. They have also appoint all officers and in each all of discharge employes these departments and to fill all said vacancies are also constituted departments. They the board of of its equalization. designate one They required commissioner;” commissioner;” members another “fire “police and an- commissioner;” other and street and still “sanitary another “commis- sioner of public improvements.” shall mayor always designated the “commissioner of public improvements.” They have as a board and control of all over supervision passage ordinances of city council; the fees rates regulating persons, firms and corpora- franchise on account enjoying public any be fur- tions service nished the firms persons, public corporations; and for- feiture, cause, of all such franchises. have They complete over in excess of public improvements $250 ordered trustees, council or board school as well as over city grants priv- use the streets or exercise ileges other public made privileges *5 have council. the same to city They power for punish contempt the court. And all does county authority conferred the charter by be to this board shall control held the upon and powers duties to be the council by exercised and board of trustees. city In other words, subordinates the charter the entirely council city in these to respects commissioners,” all “board and rules and regulations in regard fire, to and sanitary street the-police, department made by said board the charter to to provided by superior the ordinances of city or council. Before the council city board of school trustees shall under- Ex lQOJfi Anderson. Parte $250, franchise in or grant

take public excess any improvement any street, or to use the or exercise any public or to privileges privilege whatever,” in "issue for said or to bonds advantages city, purpose any bonds, to to issue or or to submit voters a qualified proposition regulating before the shall have to ordinances power pass council city fares, etc., franchises, or or services be ren- charges regard to to etc., franchises, or before passing dered the or such public, forfeiting matters, or or all these concerning ordinances resolutions these any cimmissioners; shall first have approved only been board of by board and rec- of said commissioners report authorizing thereof, shall or board of ommending the council passage city act school trustees to thereto. These matters have reference 26, 124, 135, referred are found to in sections from to 293 inclusive of the charter. city

It be seen the terms of sections by will of the charter above re- ferred the "board of commissioners” dominate and have sole control over council city regard fire police department, street department; and the all department and over fran- sanitary chises to use the streets of the for or privileges city any purpose, exercise or any otherwise to said public privilege advantage in city, the issuance any bonds said prevent by city any purpose whatever. have the also to They submission to prevent bonds, voters a issue qualified as well proposition as inhibit any fees, passage ordinances regulating and rates 'of charges firm or person, corporation any enjoying public kind franchise, or to be service the public furnished any such by person, firm or cor- or ; or forfeiting declaring forfeited poration the franchise any cause firm such person, corporation. or And section even after board of commissioners have suggested ordinances along line indicated for action council, said city city council is prohibited amending matters board of suggested by the commissioners without their consent, unless a two-thirds vote of said council. city clothes this

It also board of commissioners with or power to change all existing repeal regulations concerning rules police depart- ment, fire and street department Sec- sanitary department.

tions 124 and 135 charter. It has further appoint overseers, etc., etc., and It physicians, scavengers, street city inspectors.

has over squads used gangs employes control or to used in the street and cleaning, those alley grading repairing, including who work the street reason of street taxes. Section failing pay It is from this statement council city prac- apparent and this "board of tically power, emasculated commissioners” is the dominating power Corsicana, and without city whose consent council seem be mat- city practically helpless ters legislation mentioned. respects is contended case is applicant brought his within the rule *6 46 Texas Criminal

378 [Austin^ Lewis, Ex Rep., 7 Texas Ct. 45 Texas Crim. parte if this 1. There is no court Rep., question, decision Lewis, correct, is, think it this Ex is we parte supra, commissioners, is them charter void as to said and all acts by v, Galveston, are void. In our Brown 75 S. W. Su Rep., different in that that Court took a It said “In preme opinion view. our State the doctrine is well that municipal corporation own settled State, can exist act of of the through Legislature an only by charter, and that it has no not and can have no power granted by law.” officer Authorities are cited provided support this It is also said that has omnipotent proposition. with reference when not power legislation expressly by necessary or asserted, inhibited the Constitution. is further “The implication Texas exercise that be exercised any may could convention, a constitutional wherein Constitution con except asserted that tains a It is prohibition, express implied.” or practically or conditions of our can not be history government looked existing this reference to question to in construing further stated, “There were self-government; State; this within municipalities constituting no such territory or with the have no such traditions connected municipal we history meaning influence court determining corporations that This taken subject.” language, of the Constitution provision it, there no holds were preceding with the sentence immediately to the prior State or the governments government municipal government Republic. into an extended discussion of the question looking

Without going Constitution to constitutional conven- journals beyond conditions of our form tion, time existing Constitution, the last we concede that where the ordination is express, of the Constitution commanding prohibiting the language would there language settle would anything, express question; asserted, But Brown v. Galveston it is be no room construction. inhibitive in the Constitution that if there is any against omnipo- formation, with reference to the creation or tence in the control of one of corporations, only implication; no there are inhibitive of express provisions Legisla- ture in this To we can not agree. respect. constitutions, alwaj^s With reference the construction we have .to that the words instrument taught mandatory. been 458; 133; Texas, v. 88 Connor, Texas, Higgins v. 86 Chas Bordages, Texas, 218; Owen, Texas, 41; 88 43 Willis v. Storrie v. v. Swayne, Cortez, Hutcheson, 685; Texas, 283; Texas, 92 v. 90 Storrie Cannon Texas, 184; 548; State, 7 Texas Crim. Hunt Hemphill, State, State, 254; 212; Cox. Texas Crim. App., App., Holly State, Hunt v. 14 Texas Crim. Texas Crim. App., App., Powell S., 787; Ct. Texas Crim. Sup. App., U. *7 379 . Ex Parte Anderson. 1904] 345; v. State, 320; State, Cline 36 v. 10 Texas Crim. Hatch Rep., 515; 584; Crim. Ex 30 Texas App., Ginnochio, Crim. App., Rainey parte v. 19 89 State, 479; Texas, 273; Texas Crim. Whitener v. App., Belknap, ; v. v. 5 Lynn 153; Latimer, Texas, 33 Texas Crim. Titus 433 Rep., Dallam, 480; 88 v. 197; Montgomery, Stockton v. Albertson 408; A., v. Y., 50; 55 Rathbone v. 34 L. R. Van Horn People, Wirth, N. Dorrence, 648; 391; Bull, S., 1 L. Ed. U. v. 1 L. U. Rep., S. Calder Ed. Crowninshield, 5, 57, 182, 184, 400; Dim., v. Sturges Const. Cooley 202; Y., 9, 97; v. Wheat., Purdy, 4 Newell v. 7 N. People, People 31; Law, 547; 3 Am. Hill, Y., 3 N. and Enc. of Eng. 2 it the will of that instrument speaks expresses people, Where that and execu- all courts people; Legislature, that virtue of the Consti- put operation by tive and the machinery instrument, but the creatures that or people speaking tution are instrument, its commands. and must be obedient that through that words of constitutions It is a cardinal rule in interpretation natural and ordinary to have been in their presumed employed are whole, that as a and that the instrument must be construed meaning; the Constitution whatever the intention the framers of and purpose intent and tenor, purpose is as fotind its its language, purport words, and whatever was the purpose must followed. In other must purpose the Constituion intent of the in ordaining people created under all the it by agencies intent to be carried out of its com- direction in executing authority clothed power, mands or behests. of a State the State adopted by people

“The Constitution of the State. This fundamental law was de- law the fundamental as to be restrictive the powers adopting by people signed it. It was created intended branches government several should government shape that all departments people law. section was inserted every Its this fundamental conduct by it as of im- vital people adopting for a regarded purpose a of the constitutional to become worthy part parcel portance to be as well were form of officers as which Its was intended to be paramount mandate governed. every trust in whatever department govern- official every person holding No themselves. mere unessential ment and to the sovereign people section it, and each matters were intended to be -each engrafted and found to be essential considered article were weighed solemnly lan- Wherever the form of constitutional government adopted; to the used is was intended to be a guage prohibitory positive unequiv- WTiereverthe manner ocal direction to the negation. language gives it was be exer- intended should exercising power, directed, and in an instru- in the manner no other manner. cised words, granting powers, restraining reserving rights. ment of powers words, fundamental words are meaning language These itself: To in them. say be found spirit breathe no spirit except 380 Texas Criminal

these words is to violation directory merely abotit a bring instrument hour. To the instrument every every day preserve we its words, must where regard except permissive, inviolate expressly Jus v. mandatory, command.” pervading spirit Varoney 459; Barb., 177; 6 W. v. Albertson’s tice, People Lawrence, S. Y., 50; Wirth, A., 408; case, N. Rathbone v. 34 L. R. Williamson Y., 374; Y., 68; Calder Porter, 52 N. Townsend v. 90 N. v. McKinney, 648; Howard, 393; Scott Ex S., Yarbrough, 1 L. Ed. U. Bull, parte Dorrence, S., 391; Horn v. S., 651; L. U. McCul Van Ed. U. Wheat., 657; Mass., Pet., Rhode Island Maryland, lough *8 30 Texas Crim. 3 Texas Crim. Crim. App., App., 14 Texas 212; 345; 22 296; 17 Texas App., 7 Texas Crim. Crim. App., App., 396; 320; 414; 36 Crim. 48 Texas, Crim. Texas App., Rep., Texas, 133; 471; 670; 36 39 273; 86 S. W. S. W. Rep., Rep., 89 855; Texas, 641. 294; S. W. 44 44 Rep., Rep., 44 S. W. times, that a been a all

It has fundamental written proposition intent, and to its and according purpose will be construed constitution Dallam, 475; Wheaton, 9 found language employed. to be in the 320; Y., 562; case, Cline’s 36 Texas Crim. 7 N. 1; 5 Cond. Rep., Nev., 399; 612; Cal., 465; 16 103 Colo., 80; 72 5 Pet. 97; (U. S.), 9 34, 40; 531; 86; Ill., Ill., 626; 76 24 Ill., 60 585; Wall., 12 S.,U. be understood it to fundamental Law, 68. We have always Black Con. constitution, do not but construction precede interpretation words, follow it. In to and other that constitutions are apply must conform to coined rules ready interpretation made and construc tion, rules of and interpretation construction are made to conform constitutions. construe Galveston, The rule announced in Brown v. omnipotence, is too stated, and under no circumstances has it broadly application to form frame work of government the manner of creation; its nor have or can authorize the applicability changing or form government subordinating departments government legislative executive 6 will. Am. Law, and Eng. Enc. of 921, cited; 44; Ind., authorities 7 Ind., 34 185. This rule of om- if it be conceded to not too nipotence, be stated strongly Supreme Court, would where the only apply clothed with admin- istrative power, to the end reasonable may prescribe regulations for out the mandate of the Constitution carrying and putting into operation the subordinate divisions and subdivisions of the State. This rule was intended, true, intended, never nor could it be if to authorize the Legisla- ture destroy right self-government, or the idea of a repub- lican form of nor can it take government; from the people the power of control over their local and centralize affairs the gen- eral some central authority created Legislature. rule in Brown v. Galveston, application supra, carried to effect, its would legitimate centralize the absolutely authority at Austin over all and subordinate divisions of the and destroy urn] 381 Ex Parte Anderson. which per idea of representative democracy, decentralization and erect law, and

meates constitutional the entire fabric American A., 98; Const. 4 L. R. Pom. centralized highly government. instead ed., 9; Cooley 1 Dillon Mun. see. Lim., ed., sec. 151 et Corp., seq.; Mich., Mich., 44; Detroit, v. Lim., ed., 225; Const. People Cal., Ill., 17; People Lynch, People Chicago, Y., 55; Porter, Y., 90 N. Albertson, 55 N. People People A., Evansville v. 4 L. R. State (Ind.), Constitution, find that

Viewed from the we standpoint 1, 2, Art. see. Constitution. is inherent people. political life, 1, etc. Art. Bo State shall be deprived liberty, citizen of this to the self-government sec. 19. The of local guaranteed 1, 1. The are divided of this State. Art. sec. powers branches, is expressly into three co-ordinate each prohibited other. The of each branch transgressing powers itself so declares. delegated power, necessarily Constitution laws to the contrary high powers sec. 29. All laws parts Art 1, section 29 de- article delegated” “herein this, “null and void.” And bearing directly clared to branch, 3, section which to the legislative article pertinently, pertains “The shall such laws as requires, pass expressly of this Constitution.” the provisions effect necessary carry last quotation requires—commands—the Legislature, is obvious this *9 to laws into to pass necessary carry department a Constitution, the and this command is to be effect the provisions left, the matter is and no discretion confided. Bo in obeyed. option 18. That are Bissell, legislation powers delegated Hipp If not is inherent sense the term can be questioned. in one Constitution, the that Constitution have framed in the people, will, and intent. of their Without the purpose pro- is the expression does exist. the the We believe Legislature visions that the creature is not the fundamental to proposition equal it is a to law of that creator. but must be subordinate creator, the has ordained the Bow, legislative the Constitution the department, executive the and has department, clothed each department, judicial and commanded them to certain the department discharge The is not each. upon Legislature devolving self-existing duties Constitution; no existence and therefore it have would Constitution which created authority. The same delegated act from must commanded ordered and that to create Legislature the Legislature that these body cor- hedged municipal corporations, in to the with restrictions and duties regard around porations as binding upon municipal corpora- Constitution, divides the State into authority, The same tions. and senatorial. It commands the judicial Leg- districts—congressional, in which sit the courts of civil certain appeals. to create districts islature cities, counties, towns and and calls them mu- State It divides \_Ausiin, Texas Criminal Const., nicipal corporations; 10. The have no art. would more power to 11 of article the Constitution with disobey reference to the creation of than it would to refuse to municipal corporations make provision for on the or to carrying State government, pass other law therein required.

And it bemay here to necessary to refer more some particularly pro- visions the Constitution the clear evident showing command and pur- pose shall exist without municipal corporations reference the legislative 16, 48, will or Article section power. expressly provides that all laws not to the repugnant provisions of the Constitution shall remain in full force until and effect repealed. amended is well in expressed by McAlister, Court Supreme State v. Texas: „ “At the 1875, time that the Constitution was en- law adopted titled ‘An act regulating 10,000 of cities of inhabi- incorporation etc., force; was in the fifth of which section for the provided tants/ election aldermen of cities the electors ward of of each the city. 1875, See Laws 113. After p. Constitution, adoption laws were revised a commission in adopted by 1879, and the section referred into the Revised copied literally Statutes, laws, article commissoners being The for revision of the in said, report Legislature, reference to title Cities Towns, etc., ‘the substance of old law is showing retained/ construction of the revisers and this law was not Legislature, the Constitution. At the time the repealed by Constitution was adopted were cities and towns in many there State under the organized n acts, law of under special which the same provision, substance, fact, aldermen was embraced. In it was the electing well known common method The city government. effect that claimed for Constitution in this would have particular operated annul all law provisions charters, general such the special the established thus changing plan municipal government. pur- so pose destroy system municipal government common in the will not be attributed the convention that framed Consti- tution, unless the used is so language certain compel construction courts.” than Stronger this could not language Now, law, well if states employed. language and we think *10 does, it was not intended the convention the framing Constitution to the to system municipal government or declare it change void, but to perpetuate system, then how could it sought be possible the could be in Legislature omnipotent setting aside the “well and common method” of said known municipal government so Constitution. If the by the Constitution perpetuated did not destroy “well the known method” perpetuate municipal government, how could the it? destroy Legislature

Then, this line we following up turn to thought, article 11 the and find that cities towns and as are classed cor- counties, the and on same porations placed plane the for are Ex Anderson. Parte 190Jf\

mentioned, are cities, towns article; and all and counties in the same article, of this language denominated municipal corporations. By and mentioned, are cities there two of municipal corporations classes First, to law laws providing towns: or Legislature pass general less. 10,000 towns of inhabitants or for of cities and incorporation to grant next of this authorizes Legislature section article 10,000 these charters to cities in excess of inhabitants. And in special taxation; to the amount sections are certain stipulations regard there to be and are found in sec- taxes levied collected. These provisions “Counties, 4 and 5 article. cities and of said Section provides, tions authorized, in or hereafter be towns are such mode now may law, to assess and collect taxes to ^evy, pay provided necessary the interest and fund indebtedness here- sinking any provide satisfy etc., undertaken, manner, tofore made and and how provides the legally levied, collected, such shall be assessed and as well current taxes as for 7 and 8 special Sections are with reference to expenses. provisions Mexico, counties and cities on the coast of Gulf of bordering which are to those cities. It to discuss these peculiar necessary pro- matters are cited or visions. These referred to to show that there only commands and the Constitution with provisions reference towns, those cities and which the Legislature is compelled obey, and excludes the idea of omnipotence Legislature with reference these cities towns. Section provides: “The cities property for towns owned and held only public purposes, such as public therefor, thereof, and the sites fire and the buildings engines furniture or used intended fires, property extinguishing public grounds all other devoted property exclusively to use benefit of the from shall forcd sale exmpt taxation,” be and from public, etc. Article further prohibits Legislature taxes on levying the property counties, municipal corporations; authorizes cities and towns to tax an not exceeding one-half of the occupation tax levy levied by the on period the same professions 10, business. Article 7, that “No law shall be section provides, passed a street

granting operate construct railroad within any or upon town or village, any public city, highway, first acquiring authorities the local control of having consent of or street high- railroad.” occupied street proposed way would hardly contended authorized set or disre- aside section, sections, this any Constitution in gard framing section laws. Article “The provides, charter shall otherwise provided not, except Constitution, pass creation, extension or authorizing law liens; special impairing counties, towns, cities, affairs schoql wards or dis- regulating * * * offices,or ; creating prescribing powers tricts and duties of * * * cities, towns, election counties, and school districts; officers fees, or extending powers aldermen, duties of regulating *11 Texas Criminal here justices “Aldermen,” magistrates or constables.” peace, mentioned, have never been other than officers. In inhibi- find the Constitution we an legislative department of duties against tion law special extending of aldermen or fees. This must done by general be regulating law, And where “otherwise Constitution. except provided” it is nowhere unless be Constitution, otherwise in provided 10,000 inhabitants, reference over so far as aldermen are to cities of Consti- concerned. But this is cited that especially more show tution aldermen as officers expressly recognizes city govern- As method McAlister, ment. said “This was common in.State to perpet- and it was intended the Constitution city government,” Constitu- these Article regard uate matters in governments. to city tion, towns, provisions confers on cities and other taxing powers therein.” specified confer of eminent domain as right not be is bound constitutional and that can provisions, body these remain. while omnipotent that: shall

Section of the same article “The Legislature provides have no authorize or any county, city, political town other lend or subdivision of the State to its credit corporation grant or individual," or asso- or aid of thing value, public money .in whatsoever; stockholder or or to become a ciation corporation, provis- or association face of corporation, Now, company.” section, ions of this would contended the Legislature it be dominate, absolutely “municipal corpora- and that omnipotent, tion the charter?” has no not granted by “All section electors of provides: qualified

Article 6, immediately for six described, shall resided months herein who have town, within limits corporate an election or preceding any city officers; to vote for other elective mayor shall have the right in all expenditure money assumption elections determine to vote who debt, qualified pay those shall taxes on property only town; that no tax for provided, poll city incorporated in said shall be levied thus incurred de- debts the persons payment of But" relation thereto.” this section is disposed from voting barred Galveston, by the supra, simple only statement that this in Brown there is a elected. mayor election when to be mayor applies election there can no But course, if no that does voting. Of there Have, as shown We case, supra, meet the McAlister’s question. not cited, Constitution not the existence only provisions the State, as divisions of but we have here corporations of municipal officers, and elective “was recognition mayors the express government,” had been method since city common the convention Court which framed the the Supreme If or set aside intend to repeal well recdgnized did then, how can set aside city government, form of *12 Ex Parte Anderson. Constitution? Constitu- What are the of this section of the provisions tion? it First, electors; relates those who reside qualified second, in the limits of or town; third, that their resi- any incorporated city dence must for be and election; six months immediately preceding fourth, it and and to cities towns. recognizes applies only Election what? “Mayor and other elective officers.” This recognizes mayors other elective and officers as officers of cities and towns. it Then, that this section was for inserted not plain purpose only pre- qualifications of electors in di- scribing municipal elections, but this where and all other officers” rectly “mayors elective be were or are to elected. It was for inserted this purpose. There was no other reason it, for of voters inserting qualifications had generally been already article this is not an prescribed express If recognition mu- that nicipal corporations existed with elective and officers, were well known State, divisions at we are a loss understand what it does it why was inserted in the mean, Constitution. If it not does that fact expressly recognize "mayor and other elective offi- cers” in are the officers municipal corporations of these corporations insertion of it elective, the in the Constitution was worse than idle. If the can other Legislature manner of prescribe securing officers of these divisions the State and provide other agencies the control local this clause of the selfi-government, under Consti- tution, then that has the at body naught provision to set said and section of the Constitution and it. If utterly by passing disregard an act, either to these special or with reference general, corporations., can officers of corporations provide municipal can be or the then appointed Legislature, Governor there by would no be that this would question the Constitution be section only set at naught by of this Legislature, force setting naught could it and substitute thereby abrogate legislative will its stead.

If could do that they then could set aside the clause subsequent in the same section with elections, regard reference to assump- debts, tion other payment provide and different means which these debts could be assumed than electors as provided by the Constitution. article

Why section inserted the Constitution its and other elective framers? officers were well Mayors understood as officers of cities towns as recognized Governor were of the officers of the members executive and legisla- Its government. tive insertion is departments not idle or mean- aside by power, nor to set legislative, ingless, executive judi- It was recognition accidental. cial, “common method “method perpetuates that city government;” government,” city officers should intended it was elected in the same should exist on city and the way old same old plan, 46 Grim.—25. Vol. Criminal

and was the provision the framers of that purpose preserve democracy. old landmarks local and representative self-government This McAlister is the plain import language supra. cited, other it was and the intended By provisions employed. a barrier centralization in the State against government. erect could this were not then it would follow that true, If fundamentally every- held self-government, paramount abrogate us, which forms basis of where with substitute *13 at the of the State. capital municipal government instead centralized has the to Gov- Legislature power If it be conceded the authorize aldermen, board and of abolish mayor ernor to appoint commission lieu thereof a ap- create in board aldermen of and at Constitu- a blow is struck Governor, then fatal pointed and this construc- government; republican and at our form of tion of, the If organic to the law. by, tion adverse provisions and could follow that it would town, necessarily to one it this can be done as reason- State; it would take no town every be so done as to absolute Austin could exercise authority the central to show that ing in the State. point This corporation every municipal of domination of all place stretch reached, would then be no been having commission; every one municipal under corporations municipal a under the hands of made to pass State could be in this corporation of these' different municipalities the people commission, central matters their own way. their own to govern the right of deprived . of this rule to one of directly section application incisive A little show, that the “rule omnipotent the Constitution might power” too it comes to far, question has been stretched when Legislature local self-government the ideas of asserting power aside of setting self-government this of local destroy right Legislature in .the as understood from recognized the begin- corporations law. Section 1 of Bill Rights constitutional of American ning local right self-government unim- preservation guarantees “All Section provides, the States. political in all paired governments and all free founded on their people, inherent for their benefit. The faith of the and instituted authority people a to the form preservation republican gov- pledged Texas stands and, ernment, only, limitation have at all they to this times subject alter, reform or their government abolish in such right inalienable Now insert think the rule of omni- they may expedient.” manner as clause, in this and read it that rule contemplated by con- potence incisive test. It we have a rather would struction, then read: is inherent in the Legislature, and free “All political govern- on instituted for ments are founded their benefit, reserved to implication unless expressly necessary people. of Texas stands pledged The faith of the preserva- and, form government; a to this subject tion republican limita- Ex Parte Anderson". 190% alter,

tian only, right has at inalienable all times the reform or think abolish their manner as government they (cid:127) expedient.” understands lawyer, man, Would or would who any of American principles theories constitutional contend for moment that the this State ever intended people said section 2 of the Bill would should read as it read Eights this rule inserted? of construction This would make the agent supe- rior to the would transfer to the principal; the right the form of it left a change government, provided republican form of government, and from the what claim to be away take their inherent even then it would political power. prevent But Legislature from changing government republican form government to one this of centralized rule of authority, omnipotence would do by of local destroying self-government. It has always been understood that ours ais complete

decentralization. “The American Mr. one system,” says Cooley, “is decentralization, of complete primary vital idea of which is local affairs shall managed by authorities; and general affairs only central authority. was under the control of *14 idea that the National Constitution was under States, framed which the yielding the national government complete and jurisdic exclusive tion over external affairs, conferred upon only, regard in powers to matters of internal regulation, as seemed to essential to national union, strength and harmony, and or without which the purpose in the ganizing national this, have been defeated. It might is also, that the impels States, several as if by common arrangement, subdivide their counties, territory towns, districts, road school and to confer of local powers legislation the sub upon of each people division, and also to incorporate cities, wherever boroughs villages the circumstances and need of a dense seem to other population require than those which are regulations needed for the rural The districts. is one which almost a

system of seems part very nature of the race to which we A similar belong. subdivision of realm for the purposes has municipal government existed in from England the earliest ages; and America, first if settlers, instinctively, adopted it in their frame of no other ever supplanted it, has or even found advocates.” Lim., Const. 225-227. Cooley pp. This doctrine found at the express recognition hands of this court in Ex parte Hazel Hart, 41 Texas Crim. page where the above language of" Cooley quoted approvingly. this, Mr. Discussing says: Cooley a have “On we preceding page spoken strong terms the complete control which is possessed by legislative authority of the over State There are municipal corporations. nevertheless some its limits to in this regard, as there are various other directions limits the State. Some legislative of these are de- expressly Texas Criminal

fined; our others from maxims spring customs, usages, self- are a of its of local people; they part a history; part system our in view government the continuance of which all and perpetuity framed, can constitutions are to which the people of the right never on renunciation their deprived except through express part. or choose, indirectly, One undoubted is to right directly people under the forms for and restrictions prescribed by administration, reasons the officers of local policy, general board that is make the laws. This is late which right been has sometimes encroached under various pretenses, upon plausible have but almost with the which reasonable men should always result from the anticipated at a distance experiment body attempting a local of whose needs could know govern community affairs or they little, information they likely should derive from sources except ed., Linr., have interested misleading.” Cooley reasons Const. Mr. said with Whatever have reference to p. Cooley may is no about the lan- Legislature, question emphatic there self-government he when of local guage employs asserting themselves their local' affairs. is one Our people government words, is a essentially representative in other republican form; except be formed democracy. The constitutional can not convention com- can not be elected by delegates people. selected than those people. otherwise posed representatives system Under our The Governor is people. the elected agent known our way among people is no elective, and there judiciary which their than select officers otherwise at the ballot box. select mode our elect prescribed by which .officers, and avoid servants; rulers or keep and to public based is not only centralization of 'power. This form of but also another as theory democracy, on representative *15 that of decentralization complete power. the cogent principle, of The Union; in is so in State government. It is so the Federal it the States; the clothed with is the of certain agency government Federal by people is chosen the president certain the purposes; of electors; the the senators represent sovereignty presidential through through and are selected indirectly Federal Congress in the the State is congressman the each elected means of by Legislature; the people ais the of his The President district. people particular to represent Federal President; the .and the Congress; Congress upon upon check the house, is a upon both. The senate the check upon judiciary in of the govern- the senate. So all departments house upon Federal con- of The idea government we find the decentralization. ment of hands that the the centralization power upon theory structed men, be destructive of our form set of would of man, one govern- of liberty. to civil dangerous ment and stated, find, we before that our State our nublie down Coming Ex Parte Anderson. 2904] the a check executive is upon the The by

servants are elected people. Governor; upon courts the the the Legislature Legislature; State, the Consti- our the of that terms by express both. We discover districts, districts, judicial into tution, congressional is divided and, districts; counties, cities districts; representative into senatorial districts; and school towns, and justices’ precincts commissioners’ an government made for subdivisions. other provision of the Constitu- under the entirety provisions has general supervision divisions and subdivis- tion over the These divisions and subdivisions. officers; its the county from elected their own ions the have beginning officers, aldermen the municipal corporations mayor other in municipal officers. Wherever the system applied appointive who are council, that has the city been vested in corporations power elected Galveston by city Until the charter people. granted far this rule had an unbroken so as the writer continuity informed. How is proposed by “omnipotence Legislature" divest officers, their local and confer people select them on the appointing executive. It would take no reason- ing this comprehend by gov- means our form representative could be ernment sub- easily that the destroyed; majority divisions government could be by controlled appointment officers from a minority, and the wishes and to be carried out policies by their local people affairs would be dominated by central instead authority, of the voters in majority municipal corporation, the will of the executive substituted for the will of the majority local voters. is more than readily perceivable theory decentralization and representative form which has government, dominated always our would then become centralization. The ultimate effect of this can not dis- be easily if It is obvious cerned. condition should be carried out under this rule of its end, omnipotence possible as never conceived of this time people country during existence of form of could be republican centralized in the dispensing and that the power, subdivisions would hold their rights not under the theory representative government, hut under centralized theory lodged hands of the executive That Legislature. this will not be permitted fully be con- is asserted ceded, proposition which it can done, and the initial taken. This is steps already so clearly against spirit, theory, and framework our plain government ought to be entertained for a moment. The basic of our principle “of our political system is that the ultimate sovereignty .is *16 from whom people, all legitimate spring authority.” Section 2, article 1, Constitution; Declaration of Independence, 4, July 1776; Texas 1836; Declaration of Independence, March Cooley’s Dim., Const. ed., 36; v. McConnell, McLean,

5 1 p. Spooner 347; 21 Wail., 162,

390 46 Texas Criminal Dwarris, 172; Bland, 209; Dec., 360; Cold., 221; 2 5 Potter’s 20 Am. Wall., Madison, chap. 1; 663; 20 v. 1 118. Marbury S.), Cr. (U. framework, This is true from nature essentially very as government it beginning, noAVexists as has existed since the constitu well as the “A written manner of operation. putting tion in inis instance every a. limitation upon powers government con the hands of its written republican was a agents, there never lie which stitution which to functionaries all latent delegated powers dormant incapable nation and boundless extent and are every 9;Y., Mo., 13; 15 21 N. notes; 5 ed., definition." Cooley, p. Avritten 107. But Ark., 625; 79, 91; Mich., 26 L. R. 69 24 a A., 4 first, power. than limitation of is constitution is more a something exercise second, limitation of the delegation grant power; the power granted. representative this idea of decentralization and Keeping theory v. find Stockton we democracy republican form of is “That Constitution 480, it said: Dallam, Avas Montgomery, law; rests which government basis on act. It is judiciary under which the executive commission times. If the leg temper influenced by and not permanent and whenever yield; act must act principles, islatiA'e its impinges Hay, declared void. act must be brought it is before court it 304; Crunch, 175. 1 Dallas, 2 inherently nothing.” Leland,

In “It iras asserted to attentive world Wilkinson v. an free'when the rights no could be government scarcely deemed^ re legislative body were the will solely left L. Bull, See also Calder v. 1 Peters, 657; Dallam, 2 480. straint.” 274; Clement 648; Porter, Dec., v. Am. v. Ed., 40 Cleveland Taylor A., A, 71; Bros., 779; Denny, 59 L. R. Holt v. 4 L. R. Evansville A., McKeller, Pr., 61; 91; L. 2 Ind., App. 4 R. Briggs Pumpuly 136; S. Pr., 247; 45 65 Brackenridge, Rep., How. Pratt W. Oswego, 20 St., 511; A., 52; L. Barb., 477; 1 47 R. 63; Y., 4 57 N. Ohio 642; 50 Am. Wall., Rep., every

A of our casual inspection makes it patent officers, the election is, para where elective system, idea, e., elected by mount i. is the method people. Such the inherent ordained which people by govern mental are chosen selected. to the agents government Apply Prior town and towns. to the Constitution these cities present our were the voters in toAvns and cities. respective officers elected ease, Constitution. This has been so our McAlister’s recognized to the extent of their charters one class to Even supra. changing 65; Texas, class, Texas, authorized statute. another 583; 323, 566; Texas, 18 S. W. S. Texas, 14. See also the law from the cre statutory W. Rep., date, until present of the provisional ation *17 1904] 391 Ex Parte Axderson. toAs since in 1901. the act the except city of Galveston chartering govern- the the State cities and towns recognition part these as secs. 3, article see ment, of the act of independent Legislature, 10; 8, 1, 5, 9, 50, 54; 3; 3; secs, art. 51, 52, 53, 6, art, 7, sec. art. sec. 16, latter inc.; 10 art. sec. 51. The 10, 11,

art. sec. art. sees. is a cited the difference homestead section between recognition Con- country. These of the provisions or town that in city obe- must Legislature yield stitution must be and the omnipotent, un- law “The is either the superior paramount dience. Constitution with means, ordinary legis- a level is on changeable by ordinary is the Legislature is when like acts alterable acts, lative other then true, alternative be it. If the former part to alter of the pleased law. the latter not If act the Constitution is contrary to legislative true, attempts part be the written constitutions are absurd on part Mar- illimitable.” nature limit the in its own had who all those Madison, U. 368. Curtis, S., “Certainly bury funda- as forming framed written them contemplated constitutions theory union, consequently mental and law paramount re- of the Legislature must be that the act such government every who controvert is Thus those void. the Constitution pugnant para- in court as that the is be considered principle must courts maintaining mount law are reduced to the necessity act the Legis- and see only on the Constitution eyes close all written subvert the foundation very doctrine would lature. This that where agree then well Ib. All courts may constitutions.” ends. legislative the Constitution is reserved with rule that stated, met Legislature we As before an an inhibition or express unless inhibition by there omnipotent rule is too stated This broadly stand- implication. necessary be so when from its diverted would proper place especially point, framework the government to subvert as laid general used as idea before stated in its decen- complete out the Constitution Ind., Ind., 185; 7 Howard (Miss.), tralization. Am. 921. Enc. Article section Law, alive Eng. p. kept command of municipal because plan express plan expressly provided by was not Constitution in repugnant 11, where the Legislature article commanded to laws prepare which be municipal corporations chartered and may amended. So the law as moment the found statute books in 1875 is repealed, of article forces the the commands Legislature to pass general laws, be, as the ease with special reference to chartering And article municipal corporations. 11 is but another recognition the command Legislature found in article 16, section the rule So when say properly applied we does not relate to nor author- ize the to tear down framework of our government.

How was the out this command carry of the Constitu- [.Austin, 46 Texas Criminal is,

tian ? surface; The answer is on manner prescribed; and these laws must with and the Con- repugnant consistent stitution, but must in accord purpose, expressed used; must intended enact such language *18 will laws as these the Constitution. operation provisions of put other This is fundamental rule of rule construction. is Any must be to necessarily the Constitution. Limitation of repugnant power on the and not the The Constitution is agent, on not principal. of in- the the either measure of reserved or rights people Lim., 47, herent. Const. and notes. It Cooley’s p. delegates. It does to the It not surrender creates or commands creation agencies. authority State. As of and subdivisions of the This is imperative. divisions stated, is too before of stated in Brown rule broadly omnipotence hand. This rule could not Galveston to apply questions legislative carry farther than to reasonable enactment to go authorize out provisions administrative matters. of the Constitution can not and will not held to authorize the to destroy or the framework of the change government. was unlimited more than a

This hundred condemned ago years Court of the Supreme United States as See being pernicious. Bull, S., 1 648; Peters, Calder v. L. Ed. U. Wilkinson Leland, 2 Crunch, 43; 657; 9 9 Gill & 365; Conn., 155; Conn., J. 30 4 (Md.), 225; 244; 10 Barb. (N. Y.), 252; 1 (S. 15 Bay Car.), Maryland, 376; Const., 177; St., 256; Black on 16 Dec., 270; Pa. 40 Am. 59 779; 71, A., 99; A., L. 4 L. R. A., 369; A., 747; R. R. 15 L. 23 L. R. A., 52; 136; A., 78; 47 L. 65 S. W. 29 L. R. Ill., R. 24 17; Y., 50; A., 408; Y., 55 N. 34 L. Mich., 75; Mich., R. N. Law, 6 Am. and Enc. of Ky., Eng. and note p. Bull, In Calder v. said: “I supra, Supreme Court can not sub of scribe to doctrine the State omnipotency Legislature, or control; without that it is absolute and its should although restrained or expressly the fundamental law the United State. The States erected people their constitu forms establish governments, tions or justice, promote welfare, to secure blessings general protect their liberty, from violence. The for property purposes which men persons will determine nature society enter and terms of the social are the and as foundation of they compact, legislative power, of it. proper what are objects decide The nature and will ends of will limit the it. exercise of This fundamental legislative prin our from the nature of free governments. flows very There are ciple can Federal not do which the without acts or exceeding certain vital in our There free authority. principles its Republican determine and overrule an which will apparent governments flagrant toas authorize manifest power, abuse of legislative injustice by positive or security away personal liberty or to law, private take prop which established. An protection erty, Ex Parte Anderson. J904] act of the I can not call (for it a to the law) contrary great

first social principles can not compact, be considered a rightful exercise of legislative authority.” Y.,

Draper N. People, relied by our Supreme own Court and brother Brooks in his my in Ex Lewis, dissent parte supra. If it be conceded that it supports claimed, the rule omnipotence, then the Albertson v. reply 55 N. People, Y., and Rathbone Wirth, Y., 150 N. A., 408, L. R. overruled the case. In Draper case, Albertson’s Court New Supreme York, speaking case, said: is to be Draper “It hoped of constitutional interests government by the occasion reaffirm doctrines never arise.” Speaking matter that court further said of the Constitution: observed, and effect “Faithfully given letter, its as well as in spirit its secures each of effectually governmental divisions the State the choosing appointing its officers, own let hindrance the State govern- *19 ment, and can of the deprived rights none and franchises thus to all. the guaranteed is, of that the several theory counties) are, cities, towns and of villages right, entitled to whom choose them, will have to rule and that this not they right over can be taken from them and electors and inhabitants away the disfranchised by any act of the or Legislature, of or all the of departments the State any combined. This lies at the foun- right self-government with, institutions, dation of our can not disturbed or interfered in even to smallest the divisions into which the State respect the is divided for without the entire governmental purposes, weakening foundation; and hence is a not to be right guarded it only carefully infraction or evasion by every department every condemned; courts, to be the when promptly by it met especially such subject investigation.” acts become judicial - this is found: Wirth, Rathbone “We Again supra, language not that is measure of the powers must the Constittuion forget to their and not the governmental delegated by péople agencies rights people.” officers,

If the can or if governor can be selected appoint they be it Governor or by appointive agency, agenc)r, any Legislature, follows; becomes dictatorial and destruction of self-government and town will for its officers and every city depend governmental policies the centralized power. Nor is the rule that Legislature omnipotent as consti- so, one. If tutional convention a sound would have the or to amend the Constitution defects it without any power supply for their it the people approbation. might to It be sufficient referring Constitution, only to article which cite perhaps provides cured, which a defect the Constitution method can be which by by form be made. amendment can If the any has the same convention, as the constitutional the same power placed upon plane, Eeports. Texas Criminal then a constitutional convention would not be for the necessary, Legis- lature would have the same Constitution, ordain the this it to the referring for ratification. This is not true, and from our nature of very governmental can not be system true. State v. Jameson A., 79, 4 L. R. well as the (Ind.), case preceding v. Denny, had under consideration practically question

issue with case reference to fire appointment police and street commissioners. In first case we find this language: “What, then, is the limit office, of the legislative appoint created statute, or there limit to If such there power? limit, then no the general all the assembly the State create may officers statute created the small Attorney-General down to officer, est are all the creatures of the township statute. It may commissioners, trustees, board appoint county county the township road superintendents, even create offices with supervisors. may limit and fill out them with its own In the appointees. light not think it will be the Constitution we do contemporaneous history the framers instrument intended to contended seriously Where, such assembly any confer leave upon, general power. think, be, limit? whatéver limit is clear then, is the We no to fill a local like us that office by appointment has under consideration. As the law the one now right prescribe a new office created does manner of appointing make no with it the we know of right appointment, carry reasonably under which such can the Constitution provision difference condi It will be noted that between the be asserted.” our that in our State is that Constitution expressly tion here stated and *20 the of the and other elective “mayor and election all requires recognizes as before specifically ihentioning, officers” in municipal corporations, seen, and aldermen. mayors Dillon, in of this Mr. his Municipal work on Corporations,

Speaking law, as follows: edition, section states “To civil territo- third with defined of local corporations ad- powers rial divisions erected vote for ministration, and the extension to officers to right of action, that with by familiarity to be affected are due who are of regard love private rights affairs and that liberty public of best government Europe— which characteristic are property * * * in America—-the the best United States. Britain—and Great and maintain a fire department "the right provide holdWe which are of of the vested rights people is one or city town them, subject to be exercised and is not legis- municipalities in so far as rules to aid interference, may preseribé except lative in the exercise such that such right; municipality people of local which was vested- in self-government is an element right the time of the adoption of the Consti- municipalities of the people it; that so much with statute tution, parted Ex Paete Andeesox. 190k\

under consideration as relates and control of the management fire cities is unconstitutional and void.” This department would case, seem in direct line “The conclusion supra. McAlister’s reach is that we of local unhesitatingly right self-government towns cities of this State is vested in the respective and that the municipalities, general no assembly has right appoint officers affairs; and administer manage right ends with the enactment of laws general assembly prescribing manner of selection and the duties of the officers.” These extracts are v. from the eases A., State found in 4 L. R Denny, State supra. 225; Barber, A.; v. 93 Am. Horton, St. v. 50 L. R. Rep., Newport Willis, v. v. supra; Owens S. City Thompson, W. Rep., 477; Wirth, A., 408; v. R. Lac, Rathbone L. O’Connor v. Fond du A., 53 L. 431; Louisville, McDonald v. 413; R. S. W. Bolton Rep., Albertson, Y., 50; Detroit, 55 N. Atl. People Rep., People Hurlburt, 9 Am. Howland, People A., 838; 41 L. R. Rep., v. Moores, A., Neb., 41 L. R. Simereal v. 454. Searcy, of local which system self-government prevails America has commanded of such admiration writers as great De Lieber Toqueville, and.others; has been said that it is one greatest safeguards of civil Professor Lieber liberty. says self-government, general as well to our local, And indispensable liberty. Thomas said: Jefferson wards, “These called in New was the townships England, vital principle of their and have themselves the proved wisest invention ever devised the wit man perfect exercise of self-govern- ment, for its preservation.”

It would be almost an endless task to review the authorities different States .this bearing upon If authorities question. cited sound, are then is placed beyond doubt, mistake or peradventure, of local self-government is as much the frame- part work, machinery, reason theory, of our spirit government iself as framed Constitution; by the sections 1 and 29 article 1 of the Constitution is forever reserved from the general power government.

But we told in Galveston, Brown v. “There were no munic- within ipalities no territory constituting and we have such traditions or history connected with the municipal corporations to influence the court determine the meaning provisions that subject.” 75 S. W. had us, occurred to statement, to this that Texas prior more varied had *21 municipal than history State in the Federal Hnion. any Though 1537, as far back as incorporated, to Thrall’s according History, Ysieta, town of in the present of the Rio Grande, in El valley Paso was known a County, to be This village. was flourishing a cen- nearly before the of the Fathers at tury landing Pilgrim Rock. In Plymouth 1540 this town of Ysieta little under the domination passed Spanish the hands of It is at Coronado. also stated by the same a author, as 46 Texas Criminal fact,

historical that in Texas, eastern what is now known as the San on River, Jacinto were towns visited La about the Salle villages 1685 or 1686. year These towns were built the Pueblo and inhabited by Indians. down a Coming little later about period, along year 1700, thereafter, or soon a more than before the declaration century of Texas towns independence, began of organization territory within now the boundaries of Texas. San Antonio regarded be may list, as the on the a first which was for long of period capital time of Texas. Then Laredo, came others Nacogdoches, Refugio, Goliad and under on And later Spanish regime. number of towns under quite a the Colonization 1825. Laws of It would be to write impossible any- a of thing Antonio, like correct Texas without of history San San Antonio without the Alamo. We as well of a might Greece expect history Antonio; without as Texas San Thermopylae Antonio without and San without the Alamo. What was to Lexington Revolution the American 1776, Gonzales was the Texas Revolution 1836. A truthful can history Goliad, of Texas not be written without without or Goliad the massacre of Fannin and his devoted little The army. history declaration Texas not be written independence could men- Brazos, the little tioning town on the Washington here declaration of independence 2, was enunciated on March 1836. At San de Austin Felipe the convention which framed the met provisional November, which occurred 1835. so government, inter- Nacogdoches woven with the Texas and with the early patriots eastern history great of Texas who settled there that one can not well be written without other. Texana, extinct, little town on Navidad now said River, was the at which point meeting patriots occurred first which threw a canvas declaration of Texas Over independence. James Kerr with Samuel meeting presided) Rogers secretary. This little was Anna, town later its name known as Santa on first was to Texana. This 1835. On changed occurred on meeting July 20th December, Goliad, a formal succeeding town written declaration of Texas ninety- about independence signed by Americans, and one 1835. These were promulgated on December towns a then-well known then inhabitants and history Mexican state. of Mex-

"Omitting empire colonization laws history ico, we and of pass to the of Mexico colonization laws of Republic March, Coahuila and Texas. These laws were promulgated Con- During that States Coahuila and Texas year ordained stitution, elect inserting therein clause guaranteeing States; the officers of the different municipalities two. self- first time in the of Texas the of local idea history feature of leading became the dominant in governmental feature au- democracy representative of that see 1 of Constitution, For these clauses volume Gam- thority. *22 Bx Parte Anderson. 190-4] 167. Article 445,

mel’s 446, Laws of and articles Texas, pages officers; pro- 159 of article and Constitution enumerated express very vided mode and manner their election. So of system for and terms elective Constitution, of towns were provided colonization officials And will be noted for guaranteed. 596, seq. forward idea. Paschal’s art. et Dig., laws carried this same existant, The laws for towns then only not provided colonization towns, awarded as for out of new and to each but well the laying land, town of which were be laid out in sites of grant leagues four fpr for and purposes— and lots farming grazing building purposes, out the town and of following Spanish plan laying adopting lay- The American of and local plan electing self-government. officers as- incorporation, operated out these towns constituted the and ing for the first time So, history their charter. of perhaps and American America, or of we have the plan Spanish country and united and system municipal corporations organizing governing one. at once engrafted harmonized into The American brought laws, of Texas the colonization but only upon Coahuila, democracy, right American plan representative tlieir to elect officers. "self-government, 104, 105, 146, 147",148, 149. With reference Laws, 1 Gammel’s pp. towns, these towns new see four each of set leagues apart 131, 34. And for further see secs. provisions, sec. author,

same p. 217, 596, et New towns were art. seq. pro- Dig., p. Paschal’s 597, Digest. as Paschal’s shown article vided this, Felipe at the town San ordained the Texans Following In 6 thereof is found this language: article provisional government. sheriff, other to elect a alcalde and shall continue “Bach municipality 26; Sayles’ Paschal’s Ann. Dig., p. officers the ayuntamientos.” Texas, May Congress act Coahuila The Const., p. should be held. 1827, as to how these elections 19, decreed further towns history et our seq. Laws of p. Gammel’s facts which length greater followed and at be further might up with the history municipal corporations identify history of independence to the Texas declaration Texas prior suffice. few will the towns of known County

In is now created Jasper what Also as Jasper. latter town now known Bevilport; Teran Anahuac, Viesea, later known Augustine, Ran Liberty, the towns of River; Brazos is now Milam on the Nashville, County, in what situated Vic- Gonzales, Columbia, Brazoria, Bastrop Matagorda, Columbus, toria, others. con- deficient in history country furnishing of our

Nor is the judicial dawn prior in Texas to the long of municipal evidence history clusive Odin, Texas, 288, very is some In Blair Republic. the Texas Victoria, town of judicially history ascertained interesting . 46 Texas Criminal Court Supreme of our shows to have existed prior *23 Texas independence. And that case is reinforced in to the his regard Victoria, in tory v. 3 another' Kemper Texas, Victoria in volume, case between same in the same 159. These parties page cases determine that laid in judicially 1826, Victoria was out and ten years before of Texas. The town of Republic originally Bastrop, Mina, called in honor of the noted revolutionist Mina, Gen. Xavier but which the act of Texas Mina changed by was from Congress 1, in honor of Baron de Bastrop. to Vol. Gammel's Laws Bastrop, Texas, 1432. For regard ascertainment in to the town p. judicial and its revolution, laid off to the Texas see Grimes Bastrop, being prior Texas, 316. The town of has some inter Bastrop, Refugio very determined, data its existence as esting showing long a town judicially revolution, Byrne, to the Texas Refugio Texas, 199. prior was laid 1832. Gonzales off town in about and became Some 1831, this town from Mitchell, facts tb can be Bass regard gathered Texas, 372. Nacogdoches had a existence while corporate Texas Mexico, under the domination of Spain before Texas declared Dunson, State v. 65. In independence. Texas, her to regard matter, laws manner of organizing this off and laying pertaining laws to the Texas, towns under see Real prior Republic Sayles’ Laws, 125, as Estate see. et all the towns seq. Practically mentioned, others, had their charters recognized well as acts of Con Texas 1299, 1838. gress 1, Vol. Gammel's Laws of pp. 1352, 1359, 1363, 1392, 1460, it is

Perhaps useless than this further pursue say matter these different acts of the Congress changed the names Republic of the elective officers well under Mexican dominition to such as are known and recognized wit, mayors, under the system, American etc. aldermen,

Before leaving branch of call subject, we would attention the fact Supreme Court an rendreed opinion by Judge Stayton, Texas, 527, determined that Railway, Jarvis judicially town Laredo was laid off in and for further some data determined judicially Court of this State in Supreme regard Antonio, Antonio, San see Lewis v. San 7 Texas. towns,

All were and are within the exception, boundaries of present the State of Texas. we

So have whatever of municipal civilization from may gleaned towns, the Pueblo discoverers; found Texas early Spanish domination, of towns organization building Spanish under up and those and erected under the Mexican organized authority; and those the blended of American and system under Mexican jurisdiction, the declaration of Texas independence, occurring prior the separa- Mexico, as well as that since 1836. The tion of American came into Texas them when brought their ideas 1904] Ex Anderson. Parte Union,

local self-government States of them in the older taught and engrafted them systems. at once and Spanish the Mexican Throughout all, strictly time, since 1825 to have we present adhered to the well self-government, known of American local plan so far the elective system of officers is concerned. municipal acts of the first Congress wherein is em- replete history, with this phasized fact that the officers of corporations these were elective and only elective. There is another little significant fact we state as an undeniable piece history: existence of municipal in Texas long preceded that of county organization All towns government. we have mentioned had years before the history system dividing Texas into counties was recognized practiced; even under the *24 Republic, the town of La seat of Grange, now county Fayette before there County, incorporated was a law passed authorizing the creation of county Fayette. course, Of the older towns nec- existed formation essarily of counties Texas. prior far So as we can ascertain, for the first time history Texas 1825 since undertook in 1901 to confer power upon the Governor to deprive municipalities of the right officers, to vote and select their destroy local self-government, confer as of source original upon executive. At this point may improper to quote statesman, immortal Edmund Burke: “This from an immediate state of change procuration and delegation to a way course of as from is the acting original power in which all the popular have been magistracies perverted from purposes.” We do not believe Texas has mis power, and was never certainly contemplated by people in framing Constitution.

Constitutions are historical documents, and each has a its history own, successive with constitutions their environments enter history of in which they country apply (People v. 53 Harding, Mich., 485; Lim., 75; Coole) p. Const. Meunch v. 86 Oppenheimer, Texas, 568; case, 38 Coombes’ Texas Crim. 648); and can looked to when in aid of necessary Inter., construction. Endlich on 517, 531; secs. States, 524; see also Kendall 12 v. United Peters, Commonwealth, 539; Dallas, v. 16 Prigg Bull, Calder v. 3 Peters, Laird, 386; Massachusetts, Island 657; Rhode v. 12 Peter, Stewart v. 299; Hunter, Wheat., Cranch, 204;

1 Martin v. 1 McCullough 316; Wheat., Co., 411; 4 Pollock v. Steamboat Maryland, S., 24 U. Views, 8; Cohen v. 264;

Baldwin’s Const. p. Virginia, Wheat., Warden, How., 299; Phil. Burrow v. Port Cooley Sarony, Ginnochio, 30 Crim. S., Ex App., U. parte Frasher v. Brown v: App., Maryland, Texas Crim. 25 U. S., 12; Dec., 272; Allen, 98 Am. Commonwealth v. Page Clark, 7 Watt A., 4 L. R. S., 127; Indiana, Evansville & TeSás Criminal {Dallas, We therefore, in accordance with parte the views in Ex expressed Lewis, supra, hold that is authorize

the executive to appoint officers; that the act of the execu- tive appointing “board of act commissioners” is illegal; of said board of commissioners is Stewart chief of appointing police void; that he is not clothed hold as a officer peace applicant, and that applicant entitled to his. and it discharge, so accordingly ordered. All discussion of the the charter validity of pretermitted as above except stated. The sections effect charter regard to entirety commissioners charter in its is not involved in this opinion, nor is that intended to be discussed.

Relator discharged. Judge. HENDERSON, to a I agree disposition the case on first stated in proposition the opinion—that is, court mentioned in the charter is not the court corporation provided for by general statute, but is mere city court without jurisdiction of State cases. commission, As to the I do not deem it necessary express an opinion. Judge. BROOKS, I dissent,and write views. my overruled without rehearing written [Motion opinion.—Reporter.] TERM,

DALLAS *25 Michigan Murray, Kid,

Will alias v. The State. 2874.

No. Decided January 1904. Rehearing February

On Motion 1904. Guilty—Charge 1.—Murder—Plea of the Court. guilty, Where, plea on second a evidence excludes murder degree, degree, shows murder first required court is not charge degree, on murder second and the tr'al precisely guilty, guilty. Qualifying plea plea same under Sanders of not as under State, State, App., 372; Giles 23 Texas Crim. Crim. Approving App., 281. State, Blocker 16. Distin App., Texas Crim. guishing Martin 36 Texas Crim. Tried below before the District Court Jefferson. Appeal Hon. W. H. Pope. from a conviction murder in the first

Appeal degree; penalty, death. murder; of the State discloses a case of foul testimony

deceased, woman, was followed defendant from place place, attacks, flee from his and finally, where she would when she sought house, broke house, defendant neighbor’s dragged refuge