135 S.W. 535 | Tex. Crim. App. | 1911
This is an original writ of habeas corpus.
Applicant was arrested for violating a city ordinance of the city of Dallas which was put into operation under what is termed the “initiative and referendum” clause contained in the charter of said city. The. ordinance in question fixed rates for telephone service. The city charter of Dallas (Sp. Acts 30th Leg. c. 71) grants authority to the board of commissioners to determine and regulate ■charges) fix fares and rates of persons, firms, and corporations enjoying franchises or other privileges in : that city, and to prescribe the service to be rendered. The charter also provides that this “board of commissioners,” known as the “city council,” shall fix and regulate the rates of water, gas, electric lights, and regulate and fix fares, tolls, and charges of local telephones and exchanges. These powers are by the terms of the charter to be exercised by the mayor and the four commissioners, unless otherwise provided. The “initiative and referendum” is also provided for in the charter. When an ordinance has been voted into operation under the ■ referendum Clause, it is also provided that, said ordinance cannot be repealed or amended except by a vote of the people. This is a sufficient statement of the case.
We may condense applicant’s main contention into one general proposition, to wit, the Legislature is without authority to authorize a city to carry on its affairs as a municipal corporation under what is known as the “initiative and referendum,” especially as applied to the fixing of rates, fares, etc.; As applicant was arrested for violating the particular ordinance put into operation by the “referendum vote,” its validity is the essential basis for his prosecution. Without that ordinance this prosecution could not be had. We find upon an inspection of the Constitution that the people have reserved to them-selve's in article 1, § 27, the right, in a peaceable manner, to assemble together for their common good, and “apply to those invested with the powers of government” for redress of grievances or other purposes by petition, address, or remonstrance. We find by the provisions of section 29 of the same article that all the powers delegated-by the Constitution are “excepted out of the general powers of government,” and declared to be “forever inviolate,” and everything contrary thereto “shall be void.” That our citizenship may do the things specified in section 27, supra, is, we think, not to be questioned, inasmuch as they expressly reserve to themselves, and have excepted out of the “general powers of the government” the matters therein specified. Under our theory of government “all power is inherent in the people,” as especially set out in article 1, § 2, of the Bill of Rights. The people do not by the provisions of section 27, supra, undertake the resumption .of their latent and inherent or any delegated power, but, on the contrary, provide that they may make known their wishes by assembling themselves together, or by petition, address, or remonstrance. When these matters go unheeded, the people are not without ample power to resume their original authority or control those invested with authority. The Constitution can be amended and changed to suit occasion and their “inherent power” thus exercised. Under the provisions of article 15 of the Constitution,'
In the way provided in section 27, art. 1, and to this extent, the “initiative” may be considered as within the contemplation of the Constitution, bub it is not therein provided that the people may resume their original and “inherent power.” Such idea is excluded by the language employed in section 27, supra. The resumption of such inherent power is provided for and to be exercised under the terms of article 17 of the Constitution. In article 2 of the Constitution we find it ordained that the powers of government shall be divided into three distinct departments with delegation of power to the Legislature to enact law; and in article 3 these matters of legislation are amplified, and in article 1, .§ 27, we ascertain how the people make known their wishes to “those invested with the powers of government.” All authority in Texas acts from delegated power, and is to be controlled in official action by such authority. The people themselves are bound by the Constitution until changed as provided in the instrument itself. In other words, the Constitution furnishes the rule and basis for the action, not only of the people who made it, but “those who are "invested with the powers of government” under it. While section 27 of article 1 may be considered in the nature of a qualified “initiative,” it does not confer upon the Legislature the authority to inaugurate and put into operation what is known as the “referendum.” On the contrary, it refutes and excludes such conclusion. Under the terms of this section, legislation cannot ‘be referred to the people for enactment by their vote. 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 as State v. Swisher, 17 Tex. 441. That ease has been recognized and followed in subsequent decisions. See Stan-field v. State, 83 Tex. 317, 18 S. W. 577, and also Werner v. City of Galveston, 72 Tex. 22, 7 S". W. 726, IS S. W. ,150. In the last-cited "case, Judge Gaines, writing the opinion, uses this language: “It is á well-settled principle that the Legislature cannot delegate its authority.to make laws by submitting the question of their enactment to a popular, vote.” These decisions have been followed by this court in its decisions. In .Ex parte Massey, 49 Tex. Cr. R. at page 67, = 92 S. W. at page 1089 (122 Am. St. Rep. 784), Judge Henderson uses this language: “As early as the case of State v. Swisher, 17 Tex. 441, it was held that the Legislature could not delegate to voters or the people the power, to pass laws in the absence of some constitutional provision authorizing this.” In th'e'' Swisher "Case, supra, "this language is found: “But, besides the fáct 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 form of government by our Constitution. Under our Constitution, the principle of lawmaking is that "the 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.”
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, nór can the Legislature render the enactment df a law dependent upon' the" acceptance by the people by popular vote: "See cases already cited. Ex parte Wall, 48 Cal. 279, 17 Am. Rep. 425; Morford v. Unger, 8 Iowa, 82; Santo v. State, 2 Iowa, 165, 63 Am. Dec. 487; State v. Beneke, 9 Iowa, 203; State ex rel. Dome v. Wilcox, 45 Mo. 458; Gibson v. Mason, 5 Nev. 283; Cincinnati, W. & Z. R. Co. v. Clinton County, 1 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 from 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. See Cincinnati, etc., v. Clinton County, 1 Ohio St. 77. Locke’s Appeal, 72 Pa. 508, 13 Am. Rep. 716, is authority for the clearly stated proposition that, if the Legislature can delegate the lawmaking to a majority of the voters, it can as well confer such power upon the minority. This doctrine would inevitably lead to the conclusion that the Legislature, has as much authority .to refer such question to a single individual as to the whole people. If the power to refer is conceded, the number to whom referred would make biit little or no difference. At least,- it would but resolve itself into a. question of legisla
Article 1, § 2, of- the Bill of Rights, prohibits any change in our ordained form of govérhment, -even by the-people themselves, which would be destructive of a republican form'of government, and they expressly there reserve to themselves the “inalienable right” and authority to alter, change, or- abolish-such ordained -form 'of- -government. There-' fore, not only was there no power granted to the Legislature to in any manner change the form of government,-but it is expressly-withheld and retained by the people in themselves exclusively. One of the-most dangerous,- if not fatal, propositions to-'our form of government, is that the legislative department may ’“change' from ah immediate state of procuration and delegation of power to a course of acting as from original power.” This, it has been said, “is the way in which all magistracies have been perverted from their purpose.”- Any change by any department of government from that ordained in the Constitution is a pure assumption of power in conflict with and directly subversive of the Constitution. If the Legislature may authorize referendum, then-the result of such referendum would or could suspend legislative acts or even the Constitution itself. This is not to be entertained.» The Legislature only may suspend laws by virtue of article 1, § 28, of the Constitution, but it cannot suspend the Constitution, nor can it authorize any other department of the government — municipal or state — to suspend any law. Any attempt to authorize a municipal body to suspend a law would be in plain derogation of said section 28. To hold that á law could be suspended by the referendum or enacted by the referendum would or might easily result in the deprivation of our citizenship of life, liberty, or property without due 'process of law. The ordinance in question may be a fair illustration and verification of that statement. Such a proceeding would condemn without charges or specifications, without a hearing, or the forms of a trial, in the absence of evidence, without a jury and even without a court, to-be exercised only by the secret inquisition of the ballot box. The referendum not only sets at defiance these constitutional guaranties, but it as well destroys the purpose and authority of the legislative department; or, on the other hand, may make that body omnipotent and superior to the Constitution from which its authority is derived. It would reinvest the people with the functions of legislation conferred upon that department of government. It is also a direct attack upon the judicial system provided by the Constitution. The courts were ordained for the purpose of the trial of causes awarding to the citizenship tribunals in which their matters may be tried and adjusted. Referendum refuses a hearing. It takes the place of the constituted judiciary, and -tries the rights of property through the ballot box. By this means every officer in the state from Governor to constable may be ousted from office and declared incompetent or corrupt, without charges, evidence; or trial. The property of the citizen may be Confiscated, and he made a bankrupt without a hearing and without due process of law. Successful révolt from a monarchial form of government eliminated the idea of minority rule, and -the provisions of the constitutional form of government discarded the idea of a pure "democracy and rejected it as vicious. These matters were all discussed at the inception Of the government and fully decided. The referendum, therefore, is wrong, first, ‘as being directly subversive of the principles o£
The ordinance being void, it is ordered that applicant be discharged from custody.