Ex Parte Stout

Decision Date21 November 1917
Docket Number(No. 4526.)
PartiesEx parte STOUT.
CourtTexas Court of Criminal Appeals

Hudspeth, Dale & Harper, of El Paso, for appellant. J. H. McBroom, City Atty., of El Paso, and E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Before May 14, 1917, the city council of El Paso, its lawmaking power, duly enacted, and on that date was in force, the following ordinance:

"An Ordinance to Regulate Walking Back and Forth, Loitering or Remaining on the Streets and Sidewalks in the City of El Paso, Texas.

"Be it Ordained by the City Council of the City of El Paso, Texas:

"Section 1. It shall be unlawful for any person or persons to walk back and forth, loiter or remain, or cause any person to walk back and forth, loiter or remain upon the streets or sidewalks in the city of El Paso, Texas, in front of any business house for the purpose of persuading any person or persons by word of mouth from entering said place or places of business for the purpose of transacting business therein.

"Sec. 2. It shall be unlawful for any person or persons to walk back and forth, loiter or remain, or cause any person to walk back and forth, loiter or remain upon the streets or sidewalks in the city of El Paso, Texas, in front of any business house for the purpose of persuading any person or persons by signs carried from entering said place or places of business for the purpose of transacting business therein.

"Sec. 3. Provided, that neither of the foregoing sections shall be held to render it unlawful for any member or members of any trade union, organization or association, or any other person to induce, or attempt to induce by peaceable and lawful means, any person to accept any particular employment, or quit or relinquish any particular employment in which such person may then be engaged, or to enter any pursuit, or refuse to enter any pursuit, or quit or relinquish any pursuit in which such person may then be engaged: Provided, that such member or members shall not have the right to invade or trespass upon the premises of another without the consent of the owner thereof.

"Sec. 4. Any person or persons violating the foregoing ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not in excess of two hundred ($200.00) dollars.

"Sec. 5. Should it hereafter be discovered or adjudged by any court that any section or portion of this ordinance is unconstitutional, void or invalid for any reason, it shall not affect the validity or constitutionality of the remaining portions of this ordinance, unless such portion so declared unconstitutional, void or invalid is so interwoven with, or dependent upon other portions of said ordinance that the same cannot be enforced as intended by this ordinance.

"Sec. 6. Whereas, the fact that there is at present no sufficient ordinance regulating the standing, loitering or remaining upon the streets and sidewalks in the city of El Paso, Texas, creates a public emergency justifying the suspension of the charter rule requiring that all ordinances be read at two regular meetings of the city council, and the same is hereby suspended by the consent of the mayor and the unanimous vote of all aldermen present, and this ordinance shall take effect and be in force from and after its passage, approval and publication."

Said Stout was prosecuted for the violation of section 2 of said ordinance before the corporation court, was convicted, and fined $25, which he refused to pay. He was thereupon taken into custody by the chief of police of El Paso and held. He sued out a writ of habeas corpus before this court. The facts were agreed upon. At the time he was arrested he was doing "picketing" on the sidewalk in front of the Java Café at 314 San Antonio street, in the city of El Paso, which consisted of his walking up and down the outer edge of the sidewalk, and back and forth in front of said café, carrying what is termed a "sandwich" badge on his breast, and a like badge on his back, which contained the following words: "This restaurant unfair to organized labor and sympathizers. Cooks', Waiters' & Waitresses' Union, Local 848. Labor is worthy of its hire." He did not engage in conversation, nor was anything said to him, by any one, while so "picketing." He was a member of the Cooks', Waiters' & Waitresses' Union, Local 848, and was doing the "picketing" by authority of that union, and because the Java Café was not employing union cooks, waiters, and waitresses.

He attacks the validity of said ordinance:

1. Because he claims the city of El Paso had no authority to pass such an ordinance.

The charter of El Paso was a special act of the Legislature of 1907, p. 24. Section 2 thereof gives said city this power and authority:

"The city of El Paso shall have power to enact and to enforce all ordinances necessary to protect health, life and property, and to prevent and summarily abate and remove nuisances, and to preserve and enforce the good government, order and security of the city and its inhabitants; to protect the lives, health and property of the inhabitants of said city, and to enact * * * any and all ordinances upon any subject: Provided, that no ordinance shall be enacted inconsistent with the laws of the state of Texas, or inconsistent with the provisions of this act; and provided, further, that the specification of particular powers shall never be construed as a limitation upon the general powers herein granted; it being intended by this act to grant and bestow upon the inhabitants of the city of El Paso full power of self-government, and it shall have and exercise all powers of municipal government not prohibited to it by this chapter or by some general law of the state of Texas or by the provisions of the Constitution of the state of Texas."

Section 56 also gives the city this power and authority:

"The city council shall have complete and exclusive control and power over the streets, alleys, and highways of the city, and to abate and remove encroachments thereon; to open, alter, close, widen, extend, establish, regulate, sell, lease, grade, clean or otherwise improve said streets: Provided, no street shall ever be closed, sold or leased except for an adequate consideration, and not then except by the vote of at least three-fourths of the aldermen and the approval of the mayor; to put drains or sewers therein and to prevent the encumbering thereof in any manner and to protect the same from encroachment or injury: Provided, that the city shall not be liable in damages at the suit of any person for injury, either to person or property, arising from an unsafe condition or want of repair of any street, square, alley, plaza, park, sidewalk, or public place in the city unless at least ten days before the injury occurred a notice in writing shall have been filed with the city clerk for the city council specifically pointing out the nature and exact locality of the defect, obstruction, or other thing that afterward occasions the injury."

The very object and purpose of municipal governments is to pass and enforce ordinances to preserve and enforce the good government, order, and security of it and its inhabitants, and to protect the lives, health, and property of its inhabitants. If they had no power to do these things, their creation and maintenance might be useless. This power and authority given said city is ample and complete to authorize it to pass and enforce said ordinance for any of the objects or purposes specified unless there is some constitutional or statutory provision which would prevent or prohibit it. Ex parte Sullivan, 77 Tex. Cr. R. 87, 178 S. W. 537, and authorities cited; Strauss v. State, 76 Tex. Cr. R. 135, 173 S. W. 663, and authorities cited.

2. The relator contends that said ordinance violates section 8, art. 1, of the Constitution of Texas, which provides:

"Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press."

And he states it also violates subdivision 1 of the Fourteenth Amendment to the Constitution of the United States, which provides that:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Under this attack he presents only the claimed invalidity under said provision of our state Constitution, and cites Ex parte Neill, 32 Tex. Cr. R. 276, 22 S. W. 923, 40 Am. St. Rep. 776; Ex parte Foster, 44 Tex. Cr. R. 427, 71 S. W. 593, 60 L. R. A. 631, 100 Am. St. Rep. 866; Mitchell v. Grand Lodge, etc. (Civ. App.) 121 S. W. 179; City of St. Louis v. Gloner, 210 Mo. 502, 109 S. W. 30, 15 L. R. A. (N. S.) 973, 124 Am. St. Rep. 750—as sustaining him.

The Neill Case held an ordinance of Seguin void which enacted that the "Sunday Sun," a paper published at Chicago, was a nuisance, and prohibited its circulation in Seguin, and made it an offense for any person to sell it therein. This court therein held:

"We are not informed of any authority which sustains the doctrine that a municipal corporation is invested with the power to declare the sale of newspapers a nuisance. The power to suppress one concedes the power to suppress all, whether such publications are political, secular, religious, decent or indecedent, obscene or otherwise. The doctrine of the Constitution must prevail in this state, which clothes the citizen with liberty to speak, write, or publish his opinion on any and all subjects, subject alone to responsibility for the abuse of such...

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