Ex Parte Levine

• Decision Date: 15 June 1904
• Citation: 81 S.W. 1206
• Parties: Ex parte LEVINE.
• Court: Texas Court of Criminal Appeals

81 S.W. 1206

Ex parte LEVINE.

Court of Criminal Appeals of Texas.

June 15, 1904.

Original application for writ of habeas corpus by S. Levine. Refused.

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

HENDERSON, J.

This is an original application for the writ of habeas corpus. The relator shows, and we understand it to be conceded, that he is held on account of a conviction in the corporation or city court of Corsicana for the alleged sale of intoxicating liquors in said city, outside of the saloon limits thereof, and his fine assessed at the sum of $25. The city of Corsicana had a special charter granted to it by the Twenty-Eighth Legislature, which superseded the former charter under the general law. Sections 191, 192, and 193 of the charter define the saloon limits of the city of Corsicana, and prohibit the sale of intoxicating liquors in said city outside of said saloon limits, and the ordinance was passed by said city in pursuance of said provision. It is also conceded that the relator, after the passage of said ordinance, carried on his saloon business outside of said saloon limits, and made sales of intoxicating liquors. Said charter, among other things, provides for a commission, appointive by the Governor, consisting of three freeholders of the city, residents therein at least five years preceding their appointment, having the same qualifications as aldermen. This board of commissioners are given certain jurisdiction of the police, fire, street, and health departments of the city. See sections 271 to 295 of the charter. The Governor appointed said commissioners in pursuance of the authority vested in him by the charter, to wit: S. A. Pace, C. H. Allyn, and J. H. Woods. These, together with E. O. Call, mayor, under the charter, constitute the board of commissioners of said city of Corsicana. John Stewart was appointed by the commissioner of the police department the chief of police or city marshal. There is also a provision in the city charter creating a city court, called a "corporation court." Sections 49 to 66, inclusive. Relator was tried in said corporation court for violating said saloon ordinance, and was fined the sum of $25, as above stated, and was committed to the custody of said Stewart, chief of police. The proceedings are regular. He comes before us and seeks his discharge because, as he claims: (1) The commission feature in said city charter renders the whole charter absolutely null and void. (2) Because the corporation court is not created according to law, and is not the corporation court provided by the act of the Twenty-Sixth Legislature (page 40). (3) Because our state Constitution provides for local option, and it is not competent for the Legislature, outside of the provisions of said Constitution, to prohibit the sale of intoxicating liquors in any part of the territory of the state. On the other hand, the respondent insists: (1) That the commission feature does not render the entire charter void; that this feature may be eliminated from the charter, and still there would be a complete municipal government; and that this feature of the charter nowhere comes in contact with relator's rights in his conviction and restraint. (2) It is a reasonable regulation, outside of local option territory, for the Legislature to prescribe in cities and towns saloon limits, and that the reasonability of such limits, being an act of the Legislature, cannot be questioned.

In Ex parte Lewis, 73 S. W. 811, 7 Tex. Ct. Rep. 974, the question of the power of the Legislature to authorize the Governor to appoint purely municipal officers of cities was discussed; and it was there held that under our Constitution the Governor did not have such authority. In Brown v. City of Galveston, 75 S. W. 488, 7 Tex. Ct. Rep. 758, the Supreme Court of this state had before it the same question, and took a contrary view. Notwithstanding the able discussion of this question by that learned tribunal, I fail to see any cogent reason for a change of the views expressed by a majority of this court in the Lewis Case, supra. However, it is here contended that there is a distinction between the commissioners appointed in this charter and purely municipal officers, such as the mayor and aldermen of a city; that these commissioners are quasi state officers, and, as such, are appointive. I do not deem it necessary to decide this question, inasmuch as, in my opinion, the commission feature of the charter of Corsicana can be rejected or eliminated, and still leave a going concern, vested with all the powers and authority of a municipal government; the rule on this subject being that if a part of an act is unconstitutional, and this can be rejected, and leave the remainder complete in itself, it is the duty of the courts to uphold that portion of the act which is constitutional. Cooley on Const. Lim. (6th Ed.) pp. 210, 211; Warren v. Mayor of Charleston, 2 Gray (Mass.) 84; Rathbone v. Wirth, 150 N. Y. 459, 45 N. E. 15, 34 L. R. A. 408. We quote from Mr. Cooley as follows: "Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that...