Ex Parte Cross

• Decision Date: 17 December 1902
• Parties: Ex parte CROSS.
• Court: Texas Court of Criminal Appeals

Page 289

71 S.W. 289

Ex parte CROSS.

Court of Criminal Appeals of Texas.

December 17, 1902.

Original application for writ of habeas corpus by P. W. Cross for the purpose of securing a discharge from arrest for violation of a city ordinance. Applicant discharged.

J. A. Bulloch, for applicant. Web Jarvis, City Atty., and Robt. A. John, Asst. Atty. Gen., for respondent.

DAVIDSON, P. J.

Applicant was arrested for violating a city ordinance of the town of Troupe, in Smith county. This ordinance, among other things, provides a punishment for the obstruction of its streets, with a penalty annexed not in excess of a fine of $25. Each 24 hours while the obstruction remains is a separate offense. One of the applicant's contentions is that this ordinance is void, because in conflict with the state law upon the same subject, which provides a penalty of not to exceed $500. Under all the authorities in this state this position is well taken.

By the parties it is agreed that what is now known as the town of Troupe was incorporated in 1873 by special act of the legislature; that its territory was limited to a mile square, with the railroad depot as the center. Its corporate name under that charter was "Zavalla." It continued as such incorporation until July, 1884, when the people of the incorporation undertook to repeal by popular vote the charter, under the provisions of what was then entitled "article 540, Rev. St. 1879." The attempted abolition of the charter by this vote was followed within a few days by a vote of the people in the same territorial limits for municipal reorganization under the name of "Troupe." It is further agreed that at the time of the special charter in 1873 granted the town of Zavalla its population was in excess of 200 and less than 1,000, and that at the time of the attempted reorganization in July, 1844, its population still was between these limits, and that population is now less than 1,000. Under this state of case applicant's proposition is that an incorporated town of less than 1,000 inhabitants could not dissolve itself and abolish its charter by a vote of the people within that territory under the then existing law. Article 540 of the law then in force provides that, if 50 or more voters of any incorporated town or village of less than 1,000 and more than 200 population desired the abolition of the corporation, they could petition the county judge to that effect, and abolish same by a two-thirds vote of the voters within its territorial limits. This applied only to towns of the class under discussion, and only then to those towns which had been incorporated and organized under the general laws of the state enacted for that purpose. But it will be observed that the present town of Troupe was organized under a special charter granted in 1873 to the town of Zavalla. There was no law in force at the time of the election in 1884 authorizing the abolition of the charter granted the town of Zavalla by the special act of 1873. It is well settled that "municipal corporations can be created only in the manner provided by law, and when created must continue until abolished in some legal method." Harness v. State, 76 Tex. 566, 13 S. W. 535. In State v. Dunson, 71 Tex. 65, 9 S. W. 103, this language is used: "The law in force since the adoption of the Revised Statutes does not provide for the reorganization of any municipal corporation by the acceptance of the general law in lieu of the former charter, whereby the former corporation is practically dissolved, in any manner other than that prescribed in article 340, Rev. St. 1879. That procedure was not followed in the attempted reorganization of the town of Nacogdoches made in 1887." This same remark will apply to the reorganization or attempted reorganization of the town of Zavalla by the voters in 1884. This reorganization could not and did not occur under article 340 mentioned in the above statute. That applied to a different class of towns entirely. The court further say in this opinion: "The inhabitants of a given territory have no inherent power to create therein a municipal corporation. This can be done only by special act of the legislature, or by a compliance with the general law providing the manner in which inhabitants may give life to such an incorporation. The inhabitants of a municipal corporation are as powerless to dissolve it, unless this be done in the mode prescribed by law, as are they to create such a corporation in a mode not prescribed by law." Largen v. State, 76 Tex. 323, 13 S. W. 161; Lum v. City of...