Ex Parte Anderson

• Decision Date: 15 June 1904
• Citation: 81 S.W. 973
• Parties: Ex parte ANDERSON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

81 S.W. 973

Ex parte ANDERSON.^*

Court of Criminal Appeals of Texas.

June 15, 1904.

Original application by J. M. Anderson for writ of habeas corpus. Granted.

Ballew & Wheeler, for appellant.Jno.R. Mays, Callicutt & Call, McClellan & Prince, and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Applicant was convicted in the city court of the city of Corsicana for violating the statestatute prohibiting sales on Sunday.Refusing to pay his fine, he was arrested by the chief of police, and resorted to the writ of habeas corpus to secure his discharge, assigning therefor various reasons.

He urges want of jurisdiction in the city court to try him, as was done, for alleged violation of a state law.This contention is well taken.Sibley's Case(Tex. Cr. App.)65 S. W. 372, is exactly in point.See, also, Holmes v. State, 44 Tex. 631;Ex parte Coombs, 38 Tex. Cr. R. 648, 44 S. W. 854;Ex parte Knox(Tex. Cr. App.)39 S. W. 670;Leach v. State, 36 Tex. Cr. R. 248, 36 S. W. 471;Ex parte Fagg, 38 Tex. Cr. R. 573, 44 S. W. 294, 40 L. R. A. 212;Ex parte Wickson(Tex. Cr. App.)47 S. W. 643;Ballard v. City of Dallas(Tex. Cr. App.)44 S. W. 864;Holland v. State(Tex. Cr. App.)39 S. W. 675;Bigby v. Tyler, 44 Tex. 351;Ex parte Towles, 48 Tex. 413;Williamson v. Lane, 52 Tex. 343;Ex parte Whitlow, 59 Tex. 273;Gibson v. Templeton, 62 Tex. 555;State v. De Gress, 72 Tex. 243, 11 S. W. 1029;Crowley v. Dallis(Tex. Cr. App.)44 S. W. 865;Titus v. Latimer, 5 Tex. 433.This case does not come within the rule laid down in Ex parte Wilbarger, 41 Tex. Cr. R. 514, 55 S. W. 968, andEx parte Hart, 41 Tex. Cr. R. 581, 56 S. W. 341.

It is further contended that he cannot be held under such judgment because it is void, the city court having no authority to render the judgment.This position is also well taken.The city court has no authority to try violations of the state penal statutes.Authoritiessupra.

It is also urged that Stewart, acting as chief of police, is not an officer of said city, because appointed by Pace, one of the commissioners appointed by the executive under the terms of the special charter granted the city of Corsicana by the recent Legislature.The appointment of Stewart is alleged to be void because the Legislature has no authority to empower the Governor to appoint the commissioners who appointed him (Stewart) chief of police.By the terms of this charter, the Governor is authorized to appoint three citizens, of not less than five years' residence in that city, to constitute a Board of Commissioners.In pursuance to this authority, the executive appointed S. A. Pace, C. H. Allyn, and J. H. Woods to constitute said board of commissioners.Pace appointed Stewart chief of police.The charter is too voluminous to be set out in this opinion, but a brief summary of it discloses that these commissioners have sole control and exclusive supervision of the fire department, police department sanitary and street department, and the management and supervision of all public improvements ordered by the council.And they are clothed with power, and it is further made their duty, to make all rules, regulations, and requirements deemed proper to govern the organization, management, and operation and control of fire, police, sanitary, and street departments.They have exclusive power, also, to appoint and discharge all officers and employés in each and all of these departments, and to fill all vacancies in said departments.They are also constituted the board of equalization.They are required to designate one of their members "police commissioner," another "fire commissioner," and another "sanitary and street commissioner," and still another "commissioner of public improvements."The mayor shall always be designated the "commissioner of public improvements."They have, as a board, supervision and control over the passage of all ordinances of the city council regulating the fees and rates of persons, firms, and corporations enjoying any public franchise on account of service to be furnished the public by such persons, firms, or corporations; and the forfeiture, for any cause, of all such franchises; have complete authority over public improvements in excess of $250 ordered by the city council or board of school trustees, as well as over grants or privileges to use the streets or exercise other public privileges made by the city council; have the same power to punish for contempt as does the county court.And all authority conferred by the charter upon this board shall be held to control the powers and duties to be exercised by the city council and board of trustees.In other words, the charter entirely subordinates the city council in these respects to this board of commissioners, and all rules and regulations in regard to the police, fire, sanitary, and street department made by said board are provided by the charter to be superior to the ordinances of the city council.Before the city council or board of school trustees shall undertake any public improvement in excess of $250, or grant any franchise or privilege to use the street, or to exercise any public privileges or advantages in said city, or to "issue bonds for any purpose whatever," or to submit to the qualified voters a proposition to issue bonds, or before the city council shall have power to pass ordinances regulating fares, etc., or charges in regard to franchises, or services to be rendered the public, etc., or forfeiting such franchises, or before passing ordinances or resolutions concerning any or all of these matters, these shall first have been approved by the board of commissioners; and only upon the report of said board of commissioners, authorizing and recommending the passage thereof, shall the city council or board of school trustees have power to act in reference thereto.These matters referred to are found in sections 26,124,135,172, and from 271 to 293, inclusive, of the city charter.It will be seen, by the terms of the sections of the charter above referred to, that the board of commissioners dominate and have sole control over the city council in regard to the police department, fire department, and the sanitary and street department, and over all franchises and privileges to use the streets of the city for any purpose, or otherwise to exercise any public privilege or advantage in said city, and to prevent the issuance of any bonds by said city for any purpose whatever.They have the power, also, to prevent the submission to the qualified voters of a proposition to issue any such bonds, as well as inhibit the passage of ordinances regulating the fees, charges, and rates of any person, firm, or corporation enjoying a public franchise, or kind of service to be furnished the public by any such person, firm, or corporation, or forfeiting or declaring forfeited, for any cause, the franchise of any such person, firm, or corporation.And by section 284, even after the board of commissioners have suggested ordinances along the line indicated for the action of the city council, said city council is prohibited from amending these matters suggested by the board of commissioners without their consent, unless by a two-thirds vote of said city council.It also clothes this board of commissioners with power to change or repeal all existing rules and regulations concerning the police department, fire department, and the sanitary and street department.Sections 276,124, and135 of the charter.It has further power to appoint street overseers, city physicians, etc., scavengers, etc., and inspectors.It has control over all gangs or squads or employés used or to be used in the street and alley cleaning, grading, and repairing, including those who work the street by reason of failing to pay street taxes.Section 277.It is apparent from this statement that the city council is practically emasculated of power, and this board of commissioners is the dominating power and authority in the city of Corsicana, and without whose consent the city council seem to be practically helpless in matter of 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 is void as to said commissioners and all acts by them are void.In Brown v. Galveston, 75 S. W. 488, our Supreme Court took a different view.It is said in that opinion that "in our own state the doctrine is well settled that a municipal corporation can exist only by and through an act of the Legislature of the state, and that it has no power not granted by the charter, and can have no officer not provided for by law."Authorities are cited in support of this proposition.It is also said that the Legislature has omnipotent power with reference to legislation, when not expressly or by necessary implication inhibited by the Constitution.It is further asserted, "The Legislature of Texas may exercise any power that could be exercised by a constitutional convention, except wherein the Constitution contains a prohibition, express or implied."It is practically asserted that the history or existing conditions of our government cannot be looked to in construing the Constitution with reference to this question of the right of local self-government, and it is further stated, "There were no such municipalities within the territory constituting this state, and we have no such traditions or history connected with the municipal corporations to influence the court in determining the meaning of any provision of the Constitution upon that subject."This language, taken with the sentence immediately preceding it, holds that there were no municipal governments in Texas prior to the state government or the government of the republic.

Without going into an extended discussion...