Ex Parte McCarver
| Decision Date | 15 June 1898 |
| Citation | 46 S.W. 936 |
| Parties | EX parte McCARVER. |
| Court | Texas Court of Criminal Appeals |
Appeal from Graham county court; O. E. Finlay, Judge.
Clem McCarver was arrested for violating a "curfew ordinance." He resorted to habeas corpus, and, on being remanded to custody, he appeals. Reversed.
John C. Kay and P. A. Martin, for relator. W. W. Walling and Mann Trice, for the State.
This is an appeal from a proceeding under a writ of habeas corpus. It appears in the city of Graham, Young county, the city council have passed what is termed a "Curfew Ordinance," as follows:
That after said ordinance went into effect the relator, a young man 19 years of age, was found by the city marshal of the city of Graham on the street more than 15 minutes after the city marshal had rung the curfew bell at the Baptist Church, in said city, on the night of the 18th of April, 1898. That said marshal held and detained him for a violation of said ordinance. He sued out the writ of habeas corpus, and, upon an examination of the case, he was remanded by the county judge, and he now prosecutes this appeal.
The question here presented is as to the legality of said ordinance. If it be such a one as the city council had a right to pass, then the relator is entitled to no relief; otherwise he is. It appears that a distinction is made between ordinances passed under an express grant or power by the legislature and ordinances which are merely passed under a general power. As to the former, courts are not inclined to inquire into their reasonability, but as to the latter, if an ordinance does not appear to be reasonable, the courts will declare them void. See 17 Am. & Eng. Enc. Law, p. 247, and authorities there cited; Cooley, Const. Lim. (4th Ed.) pp. 243, 244, and note.
It is not shown in the statement of facts how the city of Graham is incorporated, but we take it for granted that it is incorporated under the general act of the legislature on the subject, and it only has such authority as is conferred on it by the provisions of such general act. Article 419, Rev. Civ. St. 1895, gives the municipal authorities exclusive control and power over the streets, alleys, and public grounds and highways of the city, and to abate and remove encroachments or obstructions thereon. A number of articles also confer authority on the city council to do certain things. But we fail to find any authority expressly authorizing the city...
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...794, 514 P.2d 1059; Alves v. Justice Court of Chico Judicial District, 1957, 148 Cal.App.2d 419, 306 P.2d 601; Ex parte McCarver, 1898, 39 Tex.Cr.R. 448, 46 S.W. 936. Existing state authority is of little assistance in analyzing the constitutional problems involved since the particular ordi......
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Nancy C., In re
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