Ex Parte Keeling

• Decision Date: 24 June 1908
• Citation: 121 S.W. 605
• Parties: Ex parte KEELING.
• Court: Texas Court of Criminal Appeals

121 S.W. 605

Ex parte KEELING.

Court of Criminal Appeals of Texas.

June 24, 1908.

Appeal from Robertson County Court; J. W. Woods, Judge.

Habeas corpus proceedings, on the relation of H. A. Keeling, for his release from an arrest under a city ordinance and commitment thereunder. From a judgment remanding relator to the custody of the city marshal, he appeals. Affirmed.

J. E. Bishop and Hudson & Wilson, for relator. Lane & Woods and R. W. Purdom, for respondent. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

The relator was arrested by C. R. Lovett, city marshal of the city of Calvert, on the 13th day of July, 1907, by virtue of a capias which purported to be issued by the corporation court of the city of Calvert. Relator sued out a writ of habeas corpus before the county judge of Robertson county, which was granted, and the hearing thereof set for the 23d day of July, 1907. On a hearing, relator was remanded to the custody of the city marshal.

The relator's assignment of error, and the only one, is as follows: "The court erred in remanding the defendant, H. A. Keeling, to the custody of C. R. Lovett, city marshal of the pretended city of Calvert, in this: Because the complaint upon which the capias in this case is founded, and by virtue of which the defendant is held in custody, is illegal, null, and void, and of no force or effect in law, because said complaint charges the defendant, H. A. Keeling, with the offense of violating a stock law ordinance of the pretended city of Calvert, Tex., which purports to have been passed and approved by the pretended mayor and city council of the pretended city of Calvert, Tex., on the 3d of July, 1907, when there does not exist in the law of the state of Texas any such municipal corporation known by the name of the city of Calvert, Tex.; because said ordinance does not have prefixed thereto a proper legal enacting clause, and was not passed by any body of persons or officials, or any city council, or municipal corporation having power or authority to make complaints and issue warrants of arrest, or to pass ordinances governing any municipal corporation known to the law of the state of Texas; because said complaint purports to have been made by the city marshal of the city of Calvert, and said ordinance purports to have been passed and approved by the mayor and city council of Calvert, Tex., when there is not now and never was a municipal corporation known to the law of the state of Texas by the name of the city of Calvert, Tex."

It appears from the evidence that in 1871 the city of Calvert was incorporated by the Legislature of the state of Texas. The act of incorporation purports to be an act to incorporate the city of Calvert, in Robertson county, and by its terms ordains that the inhabitants of the city of Calvert, in Robertson county, shall be and they are declared a body politic and corporate under the name and style of the "Mayor, Aldermen and Inhabitants of the City of Calvert," and provides that they shall be known in law by this name and shall have the usual powers of corporations. On the 8th day of May, 1896, the city council of Calvert passed an ordinance accepting the provisions of the Revised Statutes of Texas relating to cities, in which, in substance, it was decided to surrender the special charter of the city and to operate under the general laws of the state. By this ordinance, however, it was provided that they were to retain the corporate name the "Mayor, Aldermen and Inhabitants of the City of Calvert." The particular ordinance under which relator was arrested contained an enacting clause as follows: "Be it ordained by the city council of the city of Calvert," etc., and was approved on the 3d day of July, 1907. The testimony showed, without dispute, that Calvert had been called and known by the name "city of Calvert,' and all ordinances and resolutions passed and adopted had been in the name of the "city of Calvert," and that for many years all elections had been held, all the officers elected, all taxes levied and collected, all bonds issued, all trials had and fines imposed and collected, all ordinances promulgated by authority of the mayor and city council of the city of Calvert, and all mail addressed to Calvert, Tex.; that all freight and express shipped to persons in said municipal corporation is shipped to Calvert, Tex.; that the depot is known as Calvert, Tex., and the post office is known as Calvert, Tex. Its existence and status as a municipality is shown to have been recognized without dispute for quite 30 years.

The ordinance is claimed to be invalid, in the first place, because it is urged that its principal officers were not elected, and its laws have not been enacted, under the name of the "Mayor,...