81 S.W. 1206 | Tex. Crim. App. | 1904
Lead Opinion
This in an original application for the writ *369 of habeas corpus. The relator shows (and we understand it to be conceded), that he is held on account of a conviction in the corporation or city court of Corsicana for the alleged sale of intoxicating liquors in said city, outside of the saloon limits thereof, and his fine assessed at the sum of $25. The city of Corsicana had a special charter granted to it by the Twenty-eighth Legislature, which superseded the former charter under the general law. Sections 191, 192, and 193 of the charter define the saloon limits of the city of Corsicana, and prohibit the sale of intoxicating liquors in said city outside of said saloon limits, and the ordinance was passed by said city in pursuance of said provisions. It is also conceded that the relator, after the passage of said ordinance, carried on his saloon business outside of said saloon limits, and made sales of intoxicating liquor. Said charter, among other things, provides for a commission appointive by the Governor, consisting of three freeholders of the city, residents therein at least five years preceding their appointment, having the same qualifications of aldermen. This board of commissioners are given certain jurisdiction of the police, fire, street and health departments of the city. (See secs. 271 to 295 of the charter.) The Governor appointed said commissioners in pursuance of the authority vested in him by the charter, to wit: S.A. Pace, C.H. Allyn and J.H. Woods. These, together with E.O. Call, mayor, under the charter, constitute the board of commissioners of said city of Corsicana. John Stewart was appointed by the commissioner of the police department, the chief of police or city marshal. There is also a provision in the city charter creating a city court, called a "corporation court." Secs. 49 to 66 inclusive. Relator was tried in said corporation court for violating said saloon ordinance and was fined the sum of $25 as above stated, and was committed to the custody of said Stewart, chief of police. The proceedings are regular. He comes before us and seeks his discharge because, as he claims (1) the commission feature in said city charter renders the whole charter absolutely null and void. (2) Because the corporation court is not created according to law, and is not the corporation court provided by the act of the Twenty-sixth Legislature, page 40. (3) Because our State Constitution provides for local option, and it is not competent for the Legislature, outside of the provisions of said Constitution, to prohibit the sale of intoxicating liquors in any part of the territory of the State. On the other hand, the respondent insists (1) that the commission feature does not render the entire charter void; that this feature may be eliminated from the charter and still there would be a complete municipal government; and that this feature of the charter nowhere comes in contact with relator's rights in his conviction and restraint. (2) It is a reasonable regulation (outside of local option territory) for the Legislature to prescribe in cities and towns saloon limits, and that the reasonability of such limits being an act of the Legislature, can not be questioned. *370
In Ex parte Lewis, 7 Texas Ct. Rep., 974,
Now, applying this rule of construction, which we understand to be *371 the conceded rule on the subject, can we eliminate the commission feature of the charter of the city of Corsicana, and still have a complete municipal government in all its departments. An examination of the charter will leave no doubt upon this question. The commission feature itself is in a separate and distinct portion of the charter. See Charter, secs. 271 to 295 inclusive. Their duties are defined and are limited to their respective departments, and as to these matters, even in the appointment of the officers, which they are authorized to appoint, it is provided that, if there should be no such board as the board of commissioners, the city council shall appoint these officers. Secs. 40 to 42 inclusive. As to the matters over which they have jurisdiction, it is further provided if the commission from any cause is unable or unwilling to act, the city council can act regardless of the provisions relating to a board of commissioners. See Charter, secs. 27, 34. And it is provided in section 292, that in the event for any reason there should be no commissioners or a quorum thereof appointed and qualified, able and willing to act, then during such period the provisions of this charter concerning the board of commissioners shall be suspended, and the powers hereinbefore granted to the city council and board of school trustees shall be construed without reference to the provisions concerning the board of commissioners. These provisions would clearly imply that the Legislature in passing the charter provided for such a contingency wherein the commissioners from any cause should be unable to act. In addition to that, a perusal of the provisions of the charter, shows that it provides for all the departments of a municipal government, irrespective of a commission; and in addition thereto, engrafted the articles under a separate head which related to an appointive commission. I do not believe there is any difficulty in holding that the charter provisions regarding an appointive commission can be eliminated and leave a going concern, equipped in all its departments, and that under such circumstances the plain duty is, if it be conceded that the charter provisions relating to an appointive commission are unconstitutional, to reject the same and uphold the remaining provisions of the charter. Especially so in regard to this relator, inasmuch as the charter provisions and the ordinances under which he was adjudged guilty nowhere come in contact with the board of commissioners. They could neither have authorized the passing of said ordinance, nor could they have prevented it. The charter gave the commission no power whatever concerning said saloon ordinance.
In regard to the corporation court in which relator was convicted, while I regard the effort in the charter to constitute that a State court as futile, and without effect (Ex parte Fagg, 38 Tex.Crim. Rep.; Ex parte Sibley, 65 S.W. Rep., 372; Ex parte Wilbarger, 41 Tex.Crim. Rep.), still this was a case exclusively cognizable by a municipal court as such, and it had jurisdiction to try and punish *372
relator upon conviction of a municipal offense provided for by city ordinance. Blessing v. Galveston,
I further believe that the city of Corsicana, not having adopted local option, it was competent for the Legislature to prescribe in the charter a saloon limit in said city. Under the authorities I believe this to be an act of regulation not affected by the provisions of our Constitution in regard to local option. See Dorman v. State,
I also believe that the saloon limits being prescribed in the charter, its reasonableness can not be questioned.
It may be said that Stewart, chief of police, to whose custody relator was committed, having been appointed by the board of commissioners of said city, is not authorized to hold relator. Be this as it may, in my view he is held by virtue of the judgment of the court which imposed a fine on him. The council has recognized Stewart as city marshal, and he may be regarded as a de facto officer. People v. Lathrop,
Relator remanded to custody.
Addendum
I think the charter is entirely constitutional and may write my views; and hence barely concur in the conclusion here reached.
Addendum
I am of opinion the applicant ought to be discharged. For my views on questions involved so far as discussed, see Ex parte Anderson, just decided. I express here no opinion as to the validity of the charter as to its entirety.
[Motion for rehearing overruled without written opinion. — Reporter.]