Ex Parte Neill

• Decision Date: 17 June 1893
• Citation: 22 S.W. 923
• Parties: Ex parte NEILL.
• Court: Texas Court of Criminal Appeals

Page 923

22 S.W. 923

Ex parte NEILL.

Court of Criminal Appeals of Texas.

June 17, 1893.

Appeal from Guadalupe county court; James Greenwood, Judge.

Petition by John Neill for a writ of habeas corpus. The writ was denied, and he appeals. Reversed.

J. B. Dibrell, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

On April 3, 1893, the city council of the city of Seguin ordained "that the Sunday Sun, a paper said to be published at Chicago, Ill., is hereby declared a public nuisance, and its circulation prohibited within the corporate limits of the city of Seguin. Any person or persons offering to sell, barter, give away, or in any manner dispose of the Sunday Sun in violation of above ordinance shall be punished in a fine not to exceed one hundred dollars." Shortly after this ordinance should have gone into effect the applicant, a news dealer in the city of Seguin, was arrested, and fined in the mayor's court, for a violation of said ordinance. Resorting to a writ of habeas corpus, he was upon a hearing thereunder remanded to custody, the county judge holding the ordinance valid. Hence this appeal.

This ordinance is in violation of the bill of rights, and therefore void. Section 8 of the bill of rights declares that "every person shall be at liberty to speak, write, or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed, curtailing the liberty of speech, or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases." Section 29: "To guard against transgressions of the high powers herein delegated, we declare that everything in this bill of rights is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void." The power to prohibit the publication of newspapers is not within the compass of legislative action, in this state, and any law enacted for that purpose would clearly be in derogation of the bill of rights. "The constitutional liberty of speech and of the press, as we understand it," says Mr. Cooley, "implies a right to freely...