Ex Parte Farnsworth

• Decision Date: 01 March 1911
• Citation: 135 S.W. 535
• Parties: Ex parte FARNSWORTH.
• Court: Texas Court of Criminal Appeals

Page 535

135 S.W. 535

Ex parte FARNSWORTH.

Court of Criminal Appeals of Texas.

March 1, 1911.

Original application by J. E. Farnsworth for writ of habeas corpus. Applicant ordered to be discharged from custody.

See, also, 135 S. W. 538.

A. P. Wozencraft, W. S. Bramlitt, and D. A. Frank, for appellant.C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This is an original writ of habeas corpus.

Applicant was arrested for violating a city ordinance of the city of Dallas which was put into operation under what is termed the "initiative and referendum" clause contained in the charter of said city.The ordinance in question fixed rates for telephone service.The city charter of Dallas(Sp. Acts30th Leg. c. 71) grants authority to the board of commissioners to determine and regulate charges, fix fares and rates of persons, firms, and corporations enjoying franchises or other privileges in that city, and to prescribe the service to be rendered.The charter also provides that this "board of commissioners," known as the "city council," shall fix and regulate the rates of water, gas, electric lights, and regulate and fix fares, tolls, and charges of local telephones and exchanges.These powers are by the terms of the charter to be exercised by the mayor and the four commissioners, unless otherwise provided.The "initiative and referendum" is also provided for in the charter.When an ordinance has been voted into operation under the referendum clause, it is also provided that said ordinance cannot be repealed or amended except by a vote of the people.This is a sufficient statement of the case.

We may condense applicant's main contention into one general proposition, to wit, the Legislature is without authority to authorize a city to carry on its affairs as a municipal corporation under what is known as the "initiative and referendum," especially as applied to the fixing of rates, fares, etc.As applicant was arrested for violating the particular ordinance put into operation by the "referendum vote," its validity is the essential basis for his prosecution.Without that ordinance this prosecution could not be had.We find upon an inspection of the Constitution that the people have reserved to themselves in article 1, § 27, the right, in a peaceable manner, to assemble together for their common good, and "apply to those invested with the powers of government" for redress of grievances or other purposes by petition, address, or remonstrance.We find by the provisions of section 29 of the same article that all the powers delegated by the Constitution are "excepted out of the general powers of government," and declared to be "forever inviolate," and everything contrary thereto "shall be void."That our citizenship may do the things specified in section 27, supra, is, we think, not to be questioned, inasmuch as they expressly reserve to themselves, and have excepted out of the "general powers of the government" the matters therein specified.Under our theory of government "all power is inherent in the people," as especially set out in article 1, § 2, of the Bill of Rights.The people do not by the provisions of section 27, supra, undertake the resumption of their latent and inherent or any delegated power, but, on the contrary, provide that they may make known their wishes by assembling themselves together, or by petition, address, or remonstrance.When these matters go unheeded, the people are not without ample power to resume their original authority or control those invested with authority.The Constitution can be amended and changed to suit occasion and their "inherent power" thus exercised.Under the provisions of article 15 of the Constitution the higher state officials may be impeached and ousted from office.At recurring elections, the people may set aside official incumbents, and invest "the powers of government" in those who will faithfully execute the delegated trust, and instruct legislators for the changing of unjust, oppressive, or undesirable legislation.If those "invested with the powers of government" are not included within the rule of impeachment, they may be charged with dereliction, incompetency, or corruption, and tried before such proper tribunal as is provided by the Constitution or legislation thereunder.

In the way provided in section 27, art. 1, and to this extent, the "initiative" may be considered as within the contemplation of the Constitution, but it is not therein provided that the people may resume their original and "inherent power."Such idea is excluded by the language employed in section 27, supra.The resumption of such inherent power is provided for and to be exercised under the terms of article 17 of the Constitution.In article 2 of the Constitutionwe find it ordained that the powers of government shall be divided into three distinct departments with delegation of power to the Legislature to enact law; and in article 3 these matters of legislation are amplified, and in article 1, § 27, we ascertain how the people make known their wishes to "those invested with the powers of government."All authority in Texas acts from delegated power, and is to be controlled in official action by such authority.The people themselves are bound by the Constitution until changed as provided in the instrument itself.In other words, the Constitution furnishes the rule and basis for the action, not only of the people who made it, but "those who are invested with the powers of government" under it.While section 27 of article 1 may be considered in the nature of a qualified "initiative," it does not confer upon the Legislature the authority to inaugurate and put into operation what is known as the "referendum."On the contrary, it refutes and excludes such conclusion.Under the terms of this section, legislation cannot be referred to the people for enactment by their vote.That the referendum is adverse to our constitutional form of government as a means of putting into operation enactments by the Legislature has been expressly decided in this state as early as State v. Swisher, 17 Tex. 441.That case has been recognized and followed in subsequent decisions.SeeStanfield v. State, 83 Tex. 317, 18 S. W. 577, and also Werner v. City of Galveston, 72 Tex. 22, 7 S. W. 726, 12 S. W. 159.In the last-cited case, Judge Gaines, writing the opinion, uses this language: "It is a well-settled principle that the Legislature cannot delegate its authority to make laws by submitting the question of their enactment to a popular vote."These decisions have been followed by this court in its decisions.In Ex parte Massey, 49 Tex. Cr. R. at page 67, 92 S. W. at page 1089(122 Am. St. Rep. 784), Judge Henderson uses this language: "As early as the case of State v. Swisher, 17 Tex. 441, it was held that the Legislature could not delegate to voters or the people the power to pass laws in the absence of some constitutional provision authorizing this."In the Swisher Case, supra, this language is found: "But, besides the fact that the Constitution does not provide for such reference to the voters to give validity to the acts of the Legislature, we regard it as repugnant to the principles of the representative form of government by our Constitution.Under our Constitution, the principle of lawmaking is that the laws are made by the people not directly, but by and through their chosen representatives.By the act under consideration, this principle is subverted, and the law is proposed to be made at last by the popular vote of the people, leading inevitably to what was intended to be avoided—confusion and great popular excitement in the enactment of laws."

It is equally certain that the people cannot be reinvested by the Legislature with the functions of legislation conferred by them on a department of government, nor can the Legislature render the enactment of a law dependent upon the acceptance by the people by popular vote.See cases already cited.Ex parte Wall, 48 Cal. 279, 17 Am. Rep. 425;Morford v. Unger, 8 Iowa, 82;Santo v. State, 2 Iowa, 165, 63 Am. Dec. 487;State v. Beneke, 9 Iowa, 203;State ex rel. Dome v. Wilcox, 45 Mo. 458;Gibson v. Mason, 5 Nev. 283;Cincinnati, W. & Z. R. Co. v. Clinton County, 1 Ohio St. 77.This inability arises no less from the joint principle applicable to every delegated authority requiring knowledge, discretion, and rectitude in its...