71 S.W. 289 | Tex. Crim. App. | 1902
Lead Opinion
Applicant was arrested for violating a city ordinance of the town of Troupe, in Smith County. This ordinance, among other things, provides a punishment for the obstruction of its streets, with a penalty annexed not in excess of a fine of $25. Each twenty-four hours while the obstruction remains is a separate offense. One of the applicant's contentions is that this ordinance is void, because in conflict with the State law upon the same subject, which provides a penalty of not to exceed $500. Under all the authorities in this State this position is well taken.
By the parties it is agreed that what is now known as the town of Troupe was incorporated in 1873 by special act of the Legislature; that its territory was limited to a mile square, with the railroad depot as the center. Its corporate name under that charter was "Zavalla." It continued as such incorporation until July, 1884, when the people of the incorporation undertook to repeal by popular vote the charter, under the provisions of what was then entitled "article 540, Revised Statutes 1879." The attempted abolition of the charter by this vote was followed within a few days by a vote of the people in the same territorial limits for municipal reorganization under the name of "Troupe." It is further agreed that at the time of the special charter in 1873 granted the town of Zavalla its population was in excess of 200 and less than 1000, and that at the time of the attempted reorganization in July, 1884, its population still was between these limits, and that population is now less than 1000. Under this state of case applicant's proposition is that an incorporated town of less than 1000 inhabitants could not dissolve itself and abolish its charter by a vote of the people within that territory under the then existing law. Article 540 of the law then in force provides that, if fifty or more voters of any incorporated town or village of less than 1000 and more than 200 population desired the abolition of the corporation, they could petition the county judge to that effect, and abolish same by a two-thirds vote of the voters within its territorial *379
limits. This applied only to towns of the class under discussion, and only then to those towns which had been incorporated and organized under the general laws of the State enacted for that purpose. But it will be observed that the present town of Troupe was organized under a special charter granted in 1873 to the town of Zavalla. There was no law in force at the time of the election in 1884 authorizing the abolition of the charter granted the town of Zavalla by the special act of 1873. It is well settled that "municipal corporations can be created only in the manner provided by law, and when created must continue until abolished in some legal method." Harness v. State,
For the reasons indicated, the applicant is discharged from custody.
Relator discharged.
Dissenting Opinion
The statement of the case as contained in the opinion of the majority of the court is adopted. I do not understand the court to hold that a municipal corporation of a town less than 1000 inhabitants chartered under a special act of the Legislature can not be abolished or repealed by a general act on the subject which embraces or is intended to repeal the special act. If such is the contention, the authorities are against the opinion. Black, Stat. Const., 818; Endl. Interp. of Stats., sec. 230. Now, the statute in force at the time the corporation of Zavalla was attempted to be abolished was article 615, Revised Statutes 1895, which reads as follows: "When fifty of the voters of any incorporated town or village shall desire the abolishment of such corporation they may petition the county judge to that effect, who shall thereupon order an election to be held in such town or village," etc. Certainly, this statute is broad enough in its terms to embrace corporations, whether chartered by general or special law. It uses the expression, "any incorporated town or village," and, it occurs to me, was intended to authorize all towns and villages of the population stated to abolish their charter. It did not, in terms, abolish them, but accorded to every town and village in the State the privilege of abolishing its corporation, whether by general or special act; and then, under another article of the Civil Code, they were authorized to reincorporate under the general law, which the record shows was done. There is no question raised as to the regularity of either the abolishment or the reincorporation, but it simply held by a majority of the court that the statute in question did not authorize the town of Zavalla to abolish its corporation, because it was chartered under the special act, and the general law did not apply. Of course, I agree that under the decisions of the Supreme Court if the old town of Zavalla, which was attempted to be abolished eighteen years ago, was not legally abolished, then the new town of Troupe, though it has been in existence as a municipal corporation for about eighteen years, has no legal status.
I am also inclined to disagree with my brethren upon the other proposition contained in the opinion; that is, it is held that the town of Troupe could not, by an ordinance, punish an obstruction of a street by a less fine than that imposed under a State law. Article 594 of the Revised Statutes vests in the board of aldermen exclusive control of the streets and alleys and other public places within the corporate limits. This would authorize them not only to regulate, but to abolish, the streets, if it seems necessary in their discretion; and, inasmuch as exclusive authority is vested in the municipality in regard to streets, they would seem to have the privilege of passing such an ordinance in that regard as they may see proper. Echols v. State, 12 Texas Crim. App., *381
616; State v. Jones,