Ex Parte Tom Cain

120 S.W. 999 | Tex. Crim. App. | 1909

Appellant presents his application for a writ of habeas corpus, alleging in substance that he is illegally restrained of his liberty and confined by the city marshal of the city of Wichita Falls, and that he is so restrained by virtue of a certain warrant of arrest issued upon a complaint charging him with the violation of a certain city ordinance of the city of Wichita Falls, attached to his application.

It is alleged that this ordinance is unconstitutional and void, and that he ought not to be restrained of his liberty by reason of any alleged violation of the same. Attached to the application is a warrant in due form for the arrest of appellant by the recorder of the city of Wichita Falls, and a return by the city marshal reciting in substance that he is held by virtue of said warrant. Accompanying the application is an affidavit by R.V. Gwinn, charging in substance a violation of the city ordinance of said city, in that the said relator had made an addition to a wooden building situated within the fire limits, fully described and set out in said affidavit. A copy of the ordinance of the city of Wichita Falls is attached to the application, in which the fire limits of said city are distinctly set out, and it is provided that it shall be unlawful for any person thereafter to erect any building or structure of any other material than brick or stone for the walls, and metal, gravel or slate for the roof of such building or structure, except as therein provided. It is provided that any building hereafter erected, having more wood on the outside of the building than required for the door and window frames, roof, eaves, door shutters, sash, porticos and steps, shall be deemed a wooden building, subject to the penalties imposed by the preceding section; provided, however, that this section shall not be construed so as to prohibit awnings. It is also provided that it shall not be lawful for any person to move any wooden building within the fire limits to any other place within the same, nor from without to within the same, nor to elevate, nor to make an addition to, nor to cover any building now within the fire limits with shingles, or other combustible material, except repairs that are less than twenty percent of the value of said building. The ordinance contains other provisions in respect to repairs on buildings, the regulation of flues, pipes and chimneys, not necessary to here set out. It is well settled in this State that a writ of habeas corpus is not available as a means of effecting the purpose of appeal, certiorari or supersedeas; nor is it available to test the sufficiency of a criminal complaint. Ex parte Cox, 53 Tex. Crim. 240; 109 S.W. Rep., 369. By express legislative sanction (R.S., art. 523) the city council of cities incorporated under the general laws may prohibit the erection, building, placing, moving or repairing of wooden buildings within said city as they may designate and prescribe, and they are also authorized to prohibit the rebuilding or repairing of wooden buildings when same have been damaged fifty percent of the value thereof, and may prescribe the manner of ascertaining such damage. It will be noticed in this connection that section 4 of the ordinance questioned in this case prohibits repairs which are less than twenty percent of the value of said building, and to this extent, under the case of Ex parte Hidleberg, 51 Tex.Crim. Rep., there would seem to be a conflict between the ordinance in question and the general law. Aside from the express legislative grant to city councils in this State, it is an inherent power in all cities, for the prohibition of and protection against conflagration, that a city council may establish fire limits as an appropriate exercise of its police power, and this includes not only the enactment of ordinances establishing fire limits, but prohibiting the use of inflammable materials in building or repairs thereto. This authority is expressly recognized in our own courts. Chimine v. Baker, 75 S.W. Rep., 330. We are not advised in the application, or is it made to appear by any evidence, in what respect the ordinance attacked is invalid, nor is any reason shown why the relator should be discharged. The mere fact that in one unimportant respect the ordinance is not in harmony with the general law would not justify us in holding the fire ordinance invalid. To the extent of the conflict the ordinance would not be upheld. It is, therefore, ordered that the relator be, and he is, hereby remanded to the custody of the city marshal of the city of Wichita Falls.

Relator remanded.

DAVIDSON, PRESIDING JUDGE, dissents.