Ex Parte Fagg

• Citation: 44 S.W. 294
• Parties: Ex parte FAGG.
• Decision Date: 02 February 1898
• Court: Texas Court of Criminal Appeals

Page 294

44 S.W. 294

Ex parte FAGG.

Court of Criminal Appeals of Texas.

February 2, 1898.

Bud Fagg was convicted of keeping and exhibiting a gaming table and bank, and he brings an original proceeding for writ of habeas corpus. Granted, and relator discharged.

Oeland & Brown and Wm. P. Ellison, for relator. A. P. Wozencraft and T. A. Work, for city of Dallas.

HENDERSON, J.

This is a proceeding on an original habeas corpus, granted and made returnable before this court. The petition alleges that applicant is illegally restrained by one J. C. Arnold, chief of police of the city of Dallas, by virtue of a certain judgment of commitment of the city court of Dallas. The agreed statement of facts contains a copy of the judgment and writ of commitment, the complaint on which the applicant was tried, together with a copy of the ordinance under which the prosecution and conviction were had. Said ordinance follows the state law on the subject, and makes it an offense against the city of Dallas for any person to keep or exhibit, for the purpose of gaming, any gaming table or bank of any kind or description whatever, or any table or bank used for gaming, etc.; and the punishment imposed is a fine of not less than $25, nor more than $100, and imprisonment in the city jail for not less than 10 nor more than 90 days, which is the same in amount and degree as that provided under the state law or statute on the subject, which makes gaming an offense against the state laws. There was no information filed against defendant, but the complaint on which he was tried is as follows: "The State of Texas, County of Dallas, City of Dallas. Personally appeared before the undersigned authority, E. F. Gates, who, after being duly sworn, deposes and says that Bud Fagg, in the city of Dallas and state of Texas, on the 9th day of October, 1897, and before the filing of this complaint, did unlawfully keep and exhibit, for the purpose of gaming, a gaming table and bank, to wit, a faro bank, contrary to ordinances in such cases made and provided. [Signed] E. F. Gates." Sworn to and subscribed before T. L. Lawhon, city secretary. On the trial the relator Fagg was convicted, and his punishment assessed at a fine of $25 and 10 days' imprisonment in the city jail.

The contention of the applicant is that said conviction, being under an ordinance, and in the city court of Dallas, is illegal and void: (1) Because the statutes of the state make the exhibiting of a gaming table for the purpose of gaming an offense against the state, and it is not competent for the legislature to grant to a municipality authority, by ordinances, to supersede the state law on the subject; (2) because the city court of Dallas has no authority to try offenses against the state law; (3) and, granting the city court of Dallas has the power to try state cases, it must proceed as a state court. In the view we take of this question, it is not necessary to discuss the last two propositions, inasmuch as the offense alleged against applicant was prosecuted merely as a violation of the city ordinances; and we are accordingly confronted with two questions: (1) Does the charter of Dallas authorize the city council to pass an ordinance making said offense of keeping and exhibiting a gaming table for the purpose of gaming an offense against the city? (2) If the charter grants this power, did the legislature have the power, under the constitution and laws of this state, to confer upon the municipality of Dallas authority to make the exhibiting and keeping of a gaming table for the purpose of gaming an offense against the city?

We might observe here that section 24 of the new charter of the city of Dallas, granted by the 25th legislature, gives to the city court of Dallas jurisdiction as follows: "(1) To try, hear, determine, and punish all misdemeanors over which the Dallas city court now has jurisdiction. (2) To try, hear, determine and punish all misdemeanors arising under the provisions of this charter; to have concurrent jurisdiction with the state courts over all misdemeanors against the state laws, committed within the city limits, except theft and those involving official misconduct, and to have exclusive jurisdiction over disorderly houses and female vagrants." But, as stated, it is not necessary to discuss this provision with reference to the jurisdiction of the city court of state offenses, prosecuted as such; and so it does not become necessary to discuss the bearing of the case of Harris Co. v. Stewart (Tex. Sup.) 41 S. W. 650, or to review the case of Leach v. State, 36 Tex. Cr. R. 248, 36 S. W. 471; nor will we do so, further than to suggest that we find nothing in the former case requiring us to change the views expressed in the Leach Case. Furthermore while not necessary, yet the question being insisted on, we will examine the position of applicant with reference to the caption of the charter of the city of Dallas as passed by the 25th legislature, said caption being entitled "An act to incorporate the city of Dallas, and grant it a new charter."

Appellant's contention is that if it be conceded that the legislature has the power, in accordance with the view taken by the supreme court in Harris Co. v. Stewart, supra, to confer jurisdiction upon a municipal court, and so create a state court, the legislature has not done so in this instance. Entertaining the view, as we do, that a municipal court is not a state court, except in a limited sense (that is, a state court for municipal purposes only), we would expect to find, under the above caption, not a state court, as a part of the judicial system of the state, but a municipal court, having jurisdiction and cognizance of matters incidental to the corporation. In this regard we hold the views expressed in Blessing v. City of Galveston, 42 Tex. 641. As we understand that case, it was an injunction proceeding brought by Blessing and others to restrain the City of Galveston from proceeding in prosecutions alleged to have been commenced by warrants issued by John S. Rhea, claiming to be acting as recorder, under pretense of authority alleged to have been conferred on him by an act of the legislature, incorporating the city of Galveston. Several of the parties had been arrested, and others threatened with arrest, for breach of an ordinance requiring them to pay a license tax on their respective occupations, trades, and professions, and also to enjoin and restrain appellee from the collection of said license tax. The fourth ground urged by complainants against the enforcement of the tax in the city court was that the recorder's court, created by the charter of the city of Galveston, in which the proceedings were had to enforce the penalties for failure to pay said taxes, is not such a judicial tribunal as is warranted by section 1 of article 5 of the constitution. On this question Judge Moore uses the following language, which we quote in full: "The objection made to the constitutionality of the recorder's court created by the charter has been, in effect, answered by what has been heretofore said. If the legislature may, by reason of its inherent legislative power, create a municipal corporation for purposes of local government, it seems to follow, as a necessary conclusion, that it may invest with such powers as are necessary and essential for the ends and purposes of its creation. Without the grant of general police powers, and the means of enforcing their respect and observance, the act of incorporation of a town or city would be little better than waste paper. Judicial power of a general character, such as is conferred upon constitutional tribunals, or officers clothed with judicial functions for the general administration of the laws, in contradistinction to local or municipal ordinances and regulations, cannot be conferred upon mere corporation courts created to enforce the police powers delegated to such corporations. This seems to be the extent to which we can certainly say, in the absence of the constitutions and statutes applicable to them, that most of the cases cited by appellant clearly go. Some of them, however, seem to lay down a broader rule. We cannot consent to give the sections of our constitution, conferring and distributing the judicial power, so limited and technical a construction and application. We think its language, vesting judicial power `in such inferior courts and magistrates as may be created in this constitution, or by the legislature under its authority,' entirely sufficient to warrant the legislature, when creating municipal corporations, in the absence of any restriction, to create local municipal tribunals as an essential necessity to the well-being of such local municipal corporations,"—citing State v. Young, 3 Kan. 445; Hutchings v. Scott, 9 N. J. Law 218; Shafer v. Mumma, 17 Md. 381; Mayor, etc., v. Dechert, 32 Md. 369. Here, to our minds, it is very apparent that Judge Moore drew a distinction between state tribunals constituting a part of our judicial system and municipal courts as such. The latter he regarded as merely an incident to the corporation, and with limited powers to enforce municipal ordinances only. As stated above, we would not expect, under the caption of an act to charter or incorporate a city or town, to find thereunder an article or clause creating a court for other than purely municipal purposes; much less an act creating a state court, or vesting a municipal court with jurisdiction which pertains to a state court. And, if the prosecution in this case was for a state offense as such, we would be inclined to hold that the title of said act does not embrace the subject of creating a state court of the municipal court of the city of Dallas, or of conferring a jurisdiction which pertains to our state courts on said tribunal. On this subject we refer to Wulftange v. McCollom, 83 Ky. 361; Brown v. State, 79 Ga. 324, 4 S. E. 861; State v. Kinsella, 14 Minn. 524 ...