Ex Parte Lewis

Decision Date25 March 1903
PartiesEx parte LEWIS.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Galveston County; J. K. P. Gillaspie, Judge.

Habeas corpus by Charles Lewis against the sheriff of Galveston county. From a judgment remanding relator to the sheriff's custody, he appeals. Reversed.

Marsene Johnson, for appellant. J. Z. H. Scott, City Atty., C. K. Bell, Atty. Gen., and Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted in the recorder's court of the city of Galveston for violating an ordinance of said city, and fined $25. Said ordinance was of a sanitary character, and prohibited the removal of the contents of any privy or watercloset, etc., except between certain hours, with the permission of the health physician, and in accordance with certain prescribed rules. This ordinance was passed by what are termed in the charter the "board of commissioners," who are in fact the board of aldermen of said city. For failing to pay said fine, appellant was committed to jail. He sued out a writ of habeas corpus before the criminal district judge of Galveston county, who, after hearing the evidence in said case, remanded applicant to the custody of the sheriff until said fine and costs should be paid. From this judgment, applicant prosecuted an appeal to this court.

No question has been made as to the regularity of the proceedings which led up to and included the conviction; but appellant contends that said conviction was null and void, because the charter of the city of Galveston passed by the Twenty-Seventh Legislature, and approved April 19, 1901, provides that the board of aldermen of the city of Galveston, called "board of commissioners," shall consist of five commissioners, three of whom are required to be appointed by the Governor; that, in accordance with said charter provision, the Governor did appoint said three officers, one of whom was named as the president of said board of commissioners, and that these three constituted a majority of the board of aldermen of said city; that said board passed the ordinance in question, under which appellant was tried and convicted. The insistence is that the Governor has no authority, under the Constitution of this state, to appoint the members of said board, and that the charter provision authorizing him to do so is null and void, and that said ordinance, and all proceedings thereunder, are without authority of law. As the case turns upon the provisions of the charter with reference to the selection of the board of commissioners, who stand for the aldermen of said city, the provisions of the charter bearing on this subject will be quoted substantially: Section 5 provides: "There shall be appointed by the Governor of the state as soon as possible after the passage of this act, three commissioners, one of whom he shall select and designate as president of the board of commissioners provided for herein, and within ten days after the passage of this act, it shall be the duty of the commissioners' court of Galveston county to order an election to be held in the city of Galveston, at which election the qualified voters of the city of Galveston shall select two other commissioners, who, together with the three commissioners appointed by the Governor, shall constitute the board of commissioners of the city of Galveston. In ordering such election, the commissioners' court shall determine the time and the places in the city of Galveston for holding such election; and the manner of holding the same shall be governed by the laws of the state regulating general elections. Each of said five commissioners shall be over the age of twenty-five years, citizens of the United States, and for five years immediately preceding their appointment or election, residents of the city of Galveston. Each of said five commissioners shall hold office for two years from and after the date of his qualification, and until his successor shall have been duly appointed or elected, as the case may be, and duly qualified. Said board of commissioners shall constitute the municipal government of the city of Galveston." Section 9 provides for the removal of appointees; authorizing the Governor to remove the commissioners appointed by him, but withholding from him the power to remove others. Section 10 provides for filling vacancies in the board occurring during the term of office, giving the power to the Governor to fill vacancies occasioned by the resignation, etc., of his appointees; but others are to be filled in the same manner as state or district offices. Section 25 provides that the tenure of the board of commissioners shall be two years, and until their successors qualify, and that vacancies in said board are to be filled as provided in section 10. Certain sections make the president the executive officer of the city, and give him the right to vote on all questions which may arise. Other sections constitute the president and board of commissioners the successors of the mayor and board of aldermen of the city of Galveston, and fix their salaries; and said board is given plenary powers, such as are usual with reference to the government of said city, authorizing them to pass all ordinances, etc.

We understand the respondent to contend, first, that the matter of the appointment of said members of the board of commissioners by the Governor can only be inquired into by quo warranto, and that this question cannot be raised collaterally; second, that the Legislature is omnipotent in the creation of municipal corporations, unless restrained by the Constitution, and that there is nothing in the Constitution prohibiting the Legislature from granting to the Governor the power to appoint any or all of the members of the board of commissioners; third, that the appointment of the president of the board and two of the members was temporary, and, even if it be conceded that the Governor could not appoint the mayor and board of aldermen as permanent officers, it was competent to make a temporary appointment of such officers. We would observe, in this connection, that the appointments here authorized by the charter were not temporary in their character, but permanent, and that, when the time of the appointees of the Governor expired, their successors are to be appointed by the Governor. We understand this to be the plain reading of the charter provisions.

Is it necessary, in order to question the legality or constitutionality of an ordinance passed by the board of commissioners, to resort to a quo warranto proceeding? Our statute (Sayles' Ann. Civ. St. 1897, art. 4343) provides for writs of quo warranto as against one who usurps, intrudes into, or unlawfully holds or executes any office or franchise. This is in consonance with the general nature of the writ of quo warranto; that is, it furnishes a remedy or mode to try the right to an office or franchise. High on Extraordinary Remedies, §§ 591 to 621, inclusive. In State ex rel. John H. Spaulding v. Smith, 55 Tex. 447, it seems to have been held, where the question involved was simply the right to collect taxes, and not a contest for the office, that proceedings by quo warranto was not the proper remedy. In this particular case there is no contest pending for the office of alderman. Nor is this a suit to forfeit the entire charter of the city of Galveston because it is unconstitutional, nor because of nonuse or abuse of its franchise. For aught that appears, it is conceded that all the provisions of said charter are in accordance with law, except the appointment of the three commissioners. It would not necessarily follow that because the appointment of some officer of a corporation was void, being unconstitutional, the whole charter must necessarily fail. In city of El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25, it was held that the validity of the organization of the school board of the city of El Paso could only be inquired into by quo warranto. In that case it was held that the election was irregular, merely, and for those reasons might have been properly set aside in a proceeding instituted for that purpose. But we do not know that it has ever been held, where a pretended officer is acting by virtue of a commission which is absolutely void, his acts cannot be questioned in a collateral proceeding. If such should be the case, the result would follow that if one assumed to act as judge, and undertook to try a person, although his commission be absolutely void, a person so arraigned and tried would be driven to some procedure to stay the trial, in order to enable him to resort to a writ of quo warranto to question the authority of the officer trying him. In such case he would be compelled to seek the aid of the district attorney, who is authorized to prosecute writs of quo warranto, in order to stay the hand of that same district attorney in the prosecution. As we understand the rule as applicable both to civil and criminal matters, if a judgment is absolutely void, either because there is no constitutional tribunal, or because such tribunal has no jurisdiction of the subject-matter, its action can be questioned whenever and wherever it is invoked, either collaterally or otherwise. This is especially the rule in this court. See ex parte Cross, 71 S. W. 289—a recent case where an ordinance was held void because of the invalidity of the corporation. See, also, ex parte Tummins, 32 Tex. Cr. R. 117, 22 S. W. 409. In People ex rel. v. Whitcomb, 55 Ill. 172, it was said: "The proceeding in quo warranto will not lie to determine the constitutionality of a municipal law; but the proper mode to challenge such law would be to interpose an objection as a defense to the enforcement of the ordinance." And that rule, it occurs to us, accords in principle with the proper practice. And see High on Extraordinary Remedies, 618, and Stultz v. State, 65 Ind. 492. We accordingly hold that appellant was not required to resort...

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  • State ex rel. Bd. of Com'rs of Hendricks Cnty. v. Bd. of Com'rs of Marion Cnty.
    • United States
    • Indiana Supreme Court
    • November 8, 1907
    ...29 N. E. 595, 14 L. R. A. 566;Horton v. City Council, etc., 27 R. I. 283, 61 Atl. 759, 1 L. R. A. (N. S.) 512; Ex parte Lewis, 45 Tex. Cr. R. 1, 73 S. W. 811, 108 Am. St. Rep. 929, and cases cited. Arnett v. State, supra, and State v. Kolsem, supra, sustain the right of the state to control......
  • State ex rel. Bd. of Com'rs of Hendricks Cnty. v. Bd. of Com'rs of Marion Cnty.
    • United States
    • Indiana Supreme Court
    • June 24, 1908
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    • Texas Court of Criminal Appeals
    • June 15, 1904
    ...municipal legislation in respects mentioned. It is contended by applicant that his case is brought within the rule of Ex parte Lewis, 73 S. W. 811, 7 Tex. Ct. Rep. 974. There is no question, if the decision of this court in Ex parte Lewis, supra, is correct—and we think it is—this charter i......
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    • July 21, 1954
    ...110 Tex. 339, 220 S.W. 761.4 Harris County Drainage Dist. No. 12 v. City of Houston, Tex.Com.App., 1931, 35 S.W.2d 118.5 Ex Parte Lewis, 45 Tex.Cr.R. 1, 73 S.W. 811.6 Brown v. City of Galveston, 97 Tex. 1, 75 S.W. 488.7 Ex Parte Anderson, 46 Tex.Cr.R. 372, 81 S.W. 973; Mantel v. State, 55 T......
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